IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230002933 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Two DD Forms 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect, he has been diagnosed with bipolar disorder and is service connected for treatment purposes at the Department of Veterans Affairs. The laws have changed regarding the reconsideration of discharge characterizations. 3. The applicant enlisted in the Regular Army on 27 October 2004. The highest rank he attained was private first class/E-3. 4. He was formally counseled on 4 October and 5 October 2005. Areas of emphasis covered in the counseling include, but are not limited to: * insubordinate conduct towards a non-commissioned officer (NCO) * failure to obey an order on two occasions * malingering * non-compliance with procedural rules 5. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 25 October 2005 for being disrespectful in deportment towards an NCO, on or about 4 October 2005, and for dereliction of duty and failure to go at the time prescribed to his appointed place of duty, on or about 5 October 2005. His punishment consisted of reduction to private/E-2, forfeiture of $323.00 pay, and 14 days of extra duty and restriction. 6. He was formally counseled on six occasions between 14 July and 26 July 2006. Areas of emphasis covered in the counseling include, but are not limited to: * failure to report for formation on two occasions * disrespect towards an NCO on two occasions * missing movement formation * failure to report for duty * failure to obey an order * leaving his place of duty * disrupting training 7. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 22 August 2006 for the following violations: * three occasions of failure to go at the time prescribed to his appointed place of duty, between on or about 13 July 2006 and 26 July 2006 * two occasions of leaving his place of duty without authority, on or about 24 July 2006 and on or about 26 July 2006 * being disrespectful in language towards an NCO, on or about 18 July 2006 * disobeying a lawful order, on or about 18 July 2006 * being disrespectful in deportment towards an NCO, on or about 18 July 2006 His punishment consisted of reduction to private/E-1, forfeiture of $288.00 pay, and 14 days of extra duty and restriction. 8. He was formally counseled on three occasions between 14 February and 22 April 2007. Areas of emphasis covered in the counseling include, but are not limited to: * failure to report for formation on two occasions * failure to report for duty * insubordinate conduct * failure to obey an order * using a provoking gesture 9. A Military Police Report, Ansbach, Germany, dated 13 April 2007, shows the applicant was apprehended by German police for simple assault on a civilian law enforcer, possession of marijuana, soliciting a prostitute, and drunk and disorderly conduct. He was transported to the Ansbach Military Police Station and released to the military police. 10. A memorandum, from Headquarters, 1st Battalion, 4th Infantry Regiment, dated 30 April 2007, shows the applicant’s pass and alcohol privileges were revoked. He was ordered to enroll in the Army Substance Abuse Program and was restricted to post. 11. The applicant was formally counseled on 1 May 2007 for failure to report to formation on 23 April and 30 April 2007. 12. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 19 June 2007 for the following violations: * wrongfully possessing marijuana, on or about 13 April 2007 * assaulting a German police officer, on or about 13 April 2007 * committing sodomy with a prostitute, on or about 13 April 2007 * being disrespectful in language towards an NCO, on or about 19 April 2007 * four specifications of failing to go at the time prescribed to his appointed place of duty, between on or about 14 February 2007 and 30 April 2007 13. A memorandum from Headquarters, 7th Army Joint Multinational Training Command, Bissell Law Center, Wuerzburg, dated 21 June 2007, shows that German judicial authorities waived their right to exercise jurisdiction with respect to the applicant. 14. By summary court-martial on 12 July 2007, the applicant was found guilty of the charges preferred against him. Of Charge III, he was found guilty, except the word “commit,” substituting “attempting to commit.” His punishment included reduction in rank to private/E-1, forfeiture of $650.00 pay, and confinement for 30 days. The sentence was adjudged and approved on the same date. 15. The applicant's immediate commander notified the applicant on 6 August 2007, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12c, by reason of commission of serious misconduct. As the specific reason, the commander cited the applicant’s wrongful possession of marijuana. The applicant acknowledged receipt of this notification on the same date. 16. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, prior to the expiration of his term of service. 17. On 27 August 2007, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected not to submit a statement in his own behalf. 18. The applicant’s intermediate commanders reviewed and concurred with the recommendation, further recommending a service characterization of UOTHC. 19. The separation authority approved the recommended action on 14 September 2007 and directed a UOTHC characterization of service. 20. The applicant was discharged on 27 September 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was UOTHC. He was credited with 2 years, 11 months, and 1 day of net active service. 21. The Army Discharge Review Board reviewed the applicant’s request for discharge upgrade on 8 April 2009. After careful consideration, the Board determined the applicant was properly and equitably discharged, and denied his request. 22. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 23. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 24. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. He contends other mental health condition mitigates his discharge. b. 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 RA on 27 October 2004. * Applicant was repeatedly formally counseled due to insubordinate conduct towards a non-commissioned officer (NCO), failure to obey an order on two occasions, malingering, non-compliance with procedural rules, failure to report for formation on two occasions, disrespect towards an NCO on two occasions, missing movement formation, failure to report for duty, failure to obey an order, leaving his place of duty, and disrupting training. * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice on 22 August 2006 for the following violations: * three occasions of failure to go at the time prescribed to his appointed place of duty, between on or about 13 July 2006 and 26 July 2006 * two occasions of leaving his place of duty without authority, on or about 24 July 2006 and on or about 26 July 2006 * being disrespectful in language towards an NCO, on or about 18 July 2006 * disobeying a lawful order, on or about 18 July 2006 * being disrespectful in deportment towards an NCO, on or about 18 July 2006 * A Military Police Report, Ansbach, Germany, dated 13 April 2007, shows the applicant was apprehended by German police for simple assault on a civilian law enforcer, possession of marijuana, soliciting a prostitute, and drunk and disorderly conduct. He was transported to the Ansbach Military Police Station and released to the military police. * Court-martial charges were preferred against the applicant on 19 June 2007 for the following violations: * wrongfully possessing marijuana, on or about 13 April 2007 * assaulting a German police officer, on or about 13 April 2007 * committing sodomy with a prostitute, on or about 13 April 2007 * being disrespectful in language towards an NCO, on or about 19 April 2007 * four specifications of failing to go at the time prescribed to his appointed place of duty, between on or about 14 February 2007 and 30 April 2007 * The applicant was discharged on 27 September 2007 under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). His DD form 214 (Certificate of Release or Discharge from Active Duty) shows his character of service was UOTHC. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), and DD Form 214. 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. d. Limited active-duty electronic medical records were available for review. The record is absent the applicant’s Mental Status Evaluation and separation physical. However, a memorandum, dated 30 April 2007, shows the applicant’s pass and alcohol privileges were revoked due to his BAH of .290 and his risk of alcohol poisoning. The memo states that the applicant was deemed a danger to himself and others and was ordered to enroll in the Army Substance Abuse Program and was restricted to post. e. The VA electronic medical record indicates that the applicant is not service connected. However, he was recently diagnosed with Bipolar Disorder, effective date 04 May 2022, and is receiving humanitarian care via the VA. A C & P evaluation dated 01 February 2016 indicates the applicant was diagnosed with bipolar disorder and marijuana dependency in March 2008, based on symptoms reported in documentation generated at the W.O. Moss Regional Medical Center, that included symptoms characteristic of a manic episode as well as grandiose delusions. However, the provider opined that there was no evidence the applicant’s manic episode existed at the time of his military infraction. In addition, the applicant’s service treatment records failed to find any evidence of mental health problems. However, given the proximity of the applicant’s infraction to his hospitalization for a manic episode, it is likely that the applicant was experiencing prodromal symptoms of bipolar disorder, a period of subclinical symptoms that manifest prior to a full-blown episode of mania. The prodromal period typically last months or even years and begin to manifest with behaviors such as mood swings, disrupted sleep, anxiety, problems with impulse control, nervousness, depressed mood as well as other symptoms. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence that the applicant had a behavioral health condition during military service that partially mitigates his discharge. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant was likely experiencing prodromal symptoms of his Bipolar Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant was discharged for a pattern of repeated incidents of misconduct including, wrongfully possessing marijuana, assaulting a German police officer, committing sodomy with a prostitute, being disrespectful in language towards an NCO, and repeated failure to go at the time prescribed to his appointed place of duty. The applicant’s subsequent diagnosis of Bipolar Disorder, soon after his discharge from military service, indicates that he was likely experiencing a BH condition during the time of his multiple misconducts. Given the nexus between Bipolar Disorder and substance use, to alleviate his symptoms, the wrongful possession of marijuana is mitigated. Bipolar Disorder can also cause difficulty with authority and issues with avoidance, so his FTR and use of disrespectful language towards an NCO is also mitigated. While there can be a nexus between Bipolar Disorder and both aggression and hypersexuality when the person is in a manic episode, there is no indication that the applicant was in a manic episode at the time of his infraction. As a result, the applicant’s sodomy and assault of a police officer are not mitigated by his BH condition. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding sufficient evidence that the applicant had a behavioral health condition during military service that partially mitigates his discharge. The Board noted the opine that there can be a nexus between bipolar disorder and both aggression and hypersexuality when the person is in a manic episode, there is no indication that the applicant was in a manic episode at the time of his infraction. As a result, the applicant’s sodomy and assault of a police officer are not mitigated by his BH condition. 2. The Board found, based on the nature of the misconduct insufficient evidence of in- service mitigating factors for the misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that attest to his post honorable conduct that might have mitigated the misconduct that resulted in his discharge characterization. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC). Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. 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, USC, 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. Section 1556 of Title 10, USC, 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. Paragraph 3-7a provides that 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NR 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, Boards 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002933 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1