IN THE CASE OF: BOARD DATE: 29 August 2023 DOCKET NUMBER: AR20230002541 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) character of service and a personal appearance hearing via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 293 (Application for the review of Discharge) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, his character of service was a result of a chain of events and a lack of integrity, presented at the time, by members of his chain of command. He was a young, motivated Soldier attempting to lead a better life. He encountered a lot of racism, which was not spoken of openly. He received head trauma that was not reported by his chain of command. He later learned suppression of his emotions and emotional state of mind allowed him not trust people who did not have his best interests at heart. Additionally, his application to the Board notes his request is related to post-traumatic stress disorder (PTSD). 3. The applicant enlisted in the Regular Army on 8 August 2000, and he later executed an immediate reenlistment on 4 October 2001. 4. He accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 December 2001 for the following misconduct – a. The applicant, having received a lawful order from first sergeant (1SG) S., a noncommissioned officer (NCO), then known by the applicant to be an NCO, to police up garbage, an order which was the applicant's duty to obey, did, on or about 24 October 2001, willfully disobeyed the same. b. The applicant was, on or about, 24 October 2001, disrespectful in language toward 1SG S., an NCO, then known by the applicant to be a superior NCO, who was then in the execution of his office, by saying to him “Fuck off and shut the fuck up,” or words to that effect. 5. A DD Form 2624 (Specimen Custody Document-Drug Testing), dated 24 January 2002, shows the applicant tested positive for marijuana during a unit urinalysis testing conducted on 8 January 2002. 6. The applicant received counseling on 7 February 2002, as documented on DA Form 4856 (General Counseling Form) for the wrongful use and possession of a controlled substance. 7. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for misconduct on the below dates: a. On 15 March 2022 – in that the applicant did, on or about 17 January 2002 and on or about 24 January 2002, wrongfully use marijuana. His punishment included reduction to Private (E1). b. On 18 June 2002 – in that the applicant did, on or about 11 May 2002, assault Private/E-2 (PV2) S. by striking him with his closed fist. 8. A DD Form 2624 (Specimen Custody Document-Drug Testing), illegible date, shows the applicant tested positive for marijuana during a unit urinalysis testing conducted on 4 June 2002. 9. The applicant’s record does not contain documents to show whether he was referred to the Army Substance Abuse Program. 10. The applicant's record of void of a Report of Mental Status Evaluation and Separation Physical to show whether he was medically and psychiatrically cleared for separation, or any administrative action deemed appropriate by command. 11. On an unspecified date, the immediate commander notified the applicant of his intent to initiate actions to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. The commander specifically noted the applicant's wrongful use of marijuana between 17-24 January 2002; his assault on another Soldier on 11 May 2002; and his wrongful use of marijuana between 13 May and 4 June 2002. a. The applicant's immediate commander informed him of his rights and recommended his receipt of an under honorable conditions (general) character of service. b. The applicant acknowledged receipt of his commander's notification on the same date. 12. On 26 July 2002, the applicant was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under AR 635-200, Chapter 14, paragraph 14-12c and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation, under AR 635-200, Chapter 14, he was not entitled to have his case heard before an administrative separation board unless he was being considered for a discharge under other than honorable conditions. a. He understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. b. He understood that if he received a discharge certificate/character of service which was less than honorable, he may make application to the Army Discharge Review Board of the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge will be upgraded. c. He waived a personal appearance before the board, and he elected not to submit a statement in his own behalf. 13. On an unspecified date, the applicant's commander formally recommended his separation from service, under the provisions of Army Regulation 635-200, paragraph 14-12c with a General Under Honorable Conditions Discharge Certificate. The commander also notes the applicant is a substandard Soldier with a history of misconduct. His drug use understates the need to separate him from the Army. 14. The applicant's intermediate commander recommended approval of the separation action with an Under Honorable Conditions (General) Discharge Certificate. 15. The separation authority approved the chain of command's recommendation for the applicant's discharge under the provisions of AR 635-200, chapter 14, paragraph 14- 12c, and directed the issuance of an Under Honorable Conditions (General) Discharge Certificate and his reduction to the lowest enlisted rank/grade of PVT/E-1. 16. On 27 September 2002, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct, with an under honorable conditions (general) characterization of service, a separation code of "JKQ" and a reentry code of "3." His DD Form 214 shows he completed 2 years, 1 month, and 20 days of net active service during the covered period; he was awarded the Parachutist Badge; and includes entries addressing his immediate reenlistments and continuous honorable service during his initial enlistment. 17. There is no indication the applicant petitioned to the Army Discharge Review Board for an upgrade of his discharge within that Boards 15-year Statute of limitations. 18. Regulatory guidance provides that a discharge under other than honorable conditions was normally considered appropriate for Soldier's discharged under the provisions of AR 635-200, chapter 14. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 19. The applicant provided argument and/or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 20. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) character of service. The applicant indicated PTSD as being related to his request for upgrade. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: • Applicant enlisted in the Regular Army on 8 August 2000. • He accepted non-judicial punishment (NJP) on 7 December 2001 for having received a lawful order from first sergeant to police up garbage, an order which was the applicant's duty to obey, did, on or about 24 October 2001, willfully disobeyed the same; and on or about, 24 October 2001, disrespectful in language toward 1SG S., an NCO, then known by the applicant to be a superior NCO, who was then in the execution of his office, by saying to him “Fuck off and shut the fuck up,” or words to that effect. • The applicant accepted NJP on 15 March 2002 for on or about 17 January 2002 and on or about 24 January 2002, wrongful use of marijuana • The applicant accepted NJP on 18 June 2002 for on or about 11 May 2002, assault Private/E-2 (PV2) S. by striking him with his closed fist. • A DD Form 2624 (Specimen Custody Document-Drug Testing), illegible date, shows the applicant tested positive for marijuana during a unit urinalysis testing conducted on 4 June 2002. • On an unspecified date, the immediate commander notified the applicant of his intent to initiate actions to separate him from service under AR 635-200, paragraph 14-12c, for commission of a serious offense. The commander specifically noted the applicant's wrongful use of marijuana between 17-24 January 2002; his assault on another Soldier on 11 May 2002; and his wrongful use of marijuana between 13 May and 4 June 2002. • On 27 September 2002, the applicant was discharged under AR 635-200, paragraph 14-12c, by reason of misconduct, with an Under Honorable Conditions (General) Discharge. b. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, DD Form 293, his ABCMR Record of Proceedings (ROP), DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. The applicant asserts PTSD as being related to his request for upgrade. The applicant also indicated several other contributing, or potentially mitigating factors, to include “a chain of events and lack of integrity presented at the time by members of my chain of command,” encountering a lot of racism, and a head trauma that was not reported by his chain of command. There are no mental health records in his electronic health records (EHR) from his time in service to review, which is to be expected given the timeframe he served. He did not provide any medical documentation to support his assertion of mental health concerns or head injury (mTBI/TBI) during his period of service. The applicant’s record does not indicate that he was ever referred to the Army Substance Abuse Program (ASAP) after his numerous positive urinalyses, which this advisor would have expected to see. His memorandum for separation (no given date) shows that he had completed a medical exam and mental status evaluation IAW AR 40-501. ROP suggests his medical exam and Mental Status Exam were not available, however his medical exam was viewable in IPerms. His Report of Medical Examination (7 March 2002) did not indicate any psychiatric concerns, he had all 1’s on his profile, and no medical or mental health diagnoses were reported. On his Report of Medical History (7 March 2002), he noted that he’d been having frequent trouble sleeping, had been evaluated or treated for mental condition, and had abused illegal drugs or abused prescription medication, however, he also denied depression or excessive worry or attempted suicide. Of note, he also denied any head trauma or injury, and denied related symptoms (headaches, dizziness, memory problems). When the provided followed up with him, he noted difficulty falling asleep and that he had an evaluation for mental health as part of his chapter process. The record is void of his Mental Status Evaluation (MSE). EHRs were not yet consistently used by the Army and therefore no copy was found in his record. c. Per the applicant’s VA EHR, he is not service connected. He has engaged in mental health care through the VA, with a few therapy sessions in 2011-2012 and again in 2022, as well as medication management 2018-2020. He has been diagnosed with generalized anxiety disorder (GAD), anxiety disorder unspecified, mood disorder unspecified, and insomnia. During an encounter 20 September 2022, he noted experiencing numerous childhood traumas (seeing him mother overdose, seeing his father's neck cut with a knife in an attack) and was once stabbed in the back of the head, but there was no timeframe given for this event. The applicant mentioned being discharged from the Army due to an altercation with an officer, otherwise made no mention of mental health concerns or issues during his time in service. No other medical records were provided. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends PTSD is related to his request for upgrade, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, applicant asserts PTSD is related to his request for an upgrade to his discharge. (2) Did the condition exist or experience occur during military service? Unknown. The applicant did not specify when he has experienced PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted PTSD was related to his request for upgrade but did not provide any other information regarding this assertion. It is unclear if the applicant is asserting mental health issues during his time in service or now, however he did specify that he reportedly had a head trauma during his time in service. Regardless, there is no evidence beyond self-report that the applicant was experiencing a mitigating condition during his time in service. The applicant personally denied any head injury or trauma and psychological concerns, outside of difficulty falling asleep, during his separation medical exam. The applicant’s numerous positive UAs for marijuana does indicate a possible substance use disorder, however, standalone substance use disorders are not typically considered mitigating conditions. The applicant has since been diagnosed with several mental health conditions; however, this was 10-20 years after discharge and none of his mental health conditions have been service connected. Of note, substance use can be an attempt to self-medicate or to avoid negative emotional states, and these behaviors are often a natural sequalae to PTSD. However, assaulting another soldier is not part of the natural history or sequelae of his asserted mental health conditions and does not affect one’s ability to distinguish right from wrong and act in accordance with the right. In addition, his substance use and assault misconduct are not sufficient to establish a history of a condition during active service. However, per Liberal Consideration guidance, his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct (multiple NJPs, illegal drugs) with a general discharge. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 8/29/2023 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. (1) Soldiers are subject to separation under the provisions of this chapter under, paragraph 14-12c for commission of a serious military or civilian offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same of closely related offense under the Manual for court-martial. (2) A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 4. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 5. Army Regulation 15-185 (ABCMR), paragraph 2-11, states applicant's do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//