IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230005194 APPLICANT REQUESTS: An appearance before the Board via video/telephone and that his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (2 copies) * Honorable Discharge Certificate, dated 28 January 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs(VA) Decisional Documents (three) * VA summary of Benefits 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: a. He requested to sever his contract after reenlisting for 4 more years less than a year later. He was unable to continue service due to service connected injuries. b. A Veterans Law Judge ruled in his favor for service connected lumbar spine disability and radiculopathy of lower extremities on 6 August 2019, with an effective date of 11 January 2016. c. Additionally, he has been granted service connection determination for depression, asthma, sinusitis, and rhinitis granted. A general under honorable conditions is excluding him from benefits he earned during service. Specifically, it is preventing him from benefiting from Property Tax exemption in the state of due to service connected disability. Since his injuries were determined service connected, he believes the DD Form 214 should be changed. d. He wanted to make a career out of the military but had to leave solely because of his injuries. He was extremely depressed at the time of discharge, he did not fight the general discharge and believes it to be an injustice against all of the years he successfully served. e. He only needs the DD Form 214 for the period service that pertains to his first enlistment for which he was honorably discharged. He received an Honorable Discharge Certificate but was not given the DD Form 214 that corresponds to his first enlistment for the period, 13 March 1982 to 28 January 1985. He needs this to establish benefits with. 3. On the applicant's DD Form 149 he indicates other mental health issues as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 18 March 1982 for 3 years. He completed training with award of the military occupational specialty 31M (Multi-channel Communication Equipment Operator). 5. The applicant had an immediate reenlistment, for 4 years, on 29 January 1985 with the issuance of an Honorable Discharge Certificate. The highest grade he held was E-5. 6. Between 11 March 1986 and 8 May 1986, the applicant was formally counseled on four occasions for various infractions including for indebtedness, failure to report for a detail, failure to report for morning PT formation, and disrespectful conduct in formation. 7. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 3 December 1985, for failure to go to his place of duty * 1 April 1986, for , on 2 March 1986 drunk driving operating an uninsured/ unregistered vehicle: his punishment reduction to E-4 and a Letter of reprimand * 15 August 1986, for failure to go to his place of duty; his punishment included reduction to E-3 * 28 October 1986, for failure to go to his place of duty; his punishment included reduction to E-2 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 September 1986 for the proposed separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 9. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 10. The applicant's DD Form 214 shows he was discharged on 26 November 1986, under the provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory performance. He was discharged in the grade of E-2, and his service was characterized as general, under honorable conditions. He had 4 years, 8 months, and 9 days of net active service. He was awarded or authorized: * Army Good Conduct Medal * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle bar. 11. The applicant provided copies of four VA documents: a. The decisional documents dated 9 July 2019, 6 September 2019, and 23 October 2019, show VA granted the applicant service connection for a bipolar disorder, asthma, sinusitis, allergic rhinitis, degenerative arthritis of the spine, bilateral lower extremity radiculopathy, and scar on his posterior, effective 15 December 2016. b. In the 23 October 2019 VA decisional document, the VA found that he was suffering from a bipolar disorder manifested by a depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work like setting. c. A medical opinion to determine whether his bipolar disorder is related to his lumbar spine disability. After review of his claims folder, the examiner opined that his bipolar disorder is at least as likely as not proximately due to or the result of lumbar spine disability to include bilateral lower radiculopathy. d. A summary of benefits shows he is receiving a 90 percent disability evaluation with individual unemployability. 12. A review of the applicant’s service record confirms administrative entries were omitted from his DD Form 214. The entries will be added to his DD Form 214 as an administrative correction and will not be considered by the Board. The Board will consider his request for an upgrade of his general, under honorable conditions discharge. 13. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 26 November 1986 under honorable conditions discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: “I requested to sever my contract after reenlisting for 4 more years less than a year later. I was unable to continue service due to Service-Connected injuries. Veterans Law Judge ruled in my favor for Service-connected Lumbar Spine Disability and Radiculopathy of lower extremities on August 6,20l9,effective date January 11,2016. Also, Service-Connected determination for Depression, Asthma. Sinusitis, Rhinitis granted on December 15, 2016. General under honorable conditions is excluding me from benefits I earned during service. Specifically, it is preventing me from benefiting from Property Tax exemption in state of due to service-connected disability. Since my injuries were determined service connected, DD 214 should be changed as that’s why I asked for discharge in first place.” c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s signed DD 214 shows he entered the regular Army on 18 March 1982 and was discharged under honorable conditions (general) on 26 November 1986 under the provisions provided in chapter 13 of AR 635- 200, Personnel Management – Enlisted Personnel (15 July 1985): Separation for Unsatisfactory Performance. d. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. e. The applicant received an Article 15 on 3 December 1985 for failure to repair and violating a lawful order by wrongfully operating an uninsured/unregistered vehicle in the Federal Republic of Germany. He received a second Article 15 on 1 April 1986 for operating a passenger car while drunk. He received a General Officer Letter of Reprimand for this incident on 24 June 1986 and it was placed in his Official Military Personnel File (OMPF). f. On 11 March 1986, he was counseled after his commander received a letter of indebtedness for the applicant’s Deferred Payment Plan (DPP) account with the Army and Air Force Exchange Service (AAFES). g. He was barred from reenlistment on 4 August 1986. h. His third article 15, dated 15 August 1986, was for two specifications failure to repair. He received a fourth Article 15 on 28 August 1986 for failure to repair. i. The applicant underwent a mental status evaluation on 4 September 1986. The provider documented a normal examination, concluding the applicant was mentally responsible, had the mental capacity to participate in proceedings, and met the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. j. Review of his records in JLV shows he received a VA service-connected disability rating of 50% for bipolar disorder effective 15 December 2016. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: Bipolar Disorder (2) Did the condition exist or experience occur during military service? YES (3) Does the condition or experience actually excuse or mitigate the discharge? Partially: As this condition is associated with avoidant behaviors, illicit drug use and/or alcohol misuse to self-medicate, avoidant behaviors, and resistance to authority, it fully mitigates his multiple failures to repair and driving while under the influence of alcohol. However, because the condition does not impair one’s ability to differentiate right from wrong and adhere to the right, it cannot mitigate his failure to pay his debt and failure to insure and register his vehicle before driving it while stationed in the Federal Republic of Germany. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 considered the advising official recommendation of partial mitigation as his condition is associated with avoidant behaviors, illicit drug use and/or alcohol misuse to self- medicate, avoidant behaviors, and resistance to authority, it fully mitigates his multiple failures to repair and driving while under the influence of alcohol. The Board concurred with the advising opine that the applicant’s condition does not impair one’s ability to differentiate right from wrong and adhere to the right, it cannot mitigate his failure to pay his debt and failure to insure and register his vehicle before driving it while stationed in the Federal Republic of Germany. The Board noted insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements, or letters of reference in support of a clemency determination. 2. The Board agreed the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The Board found the applicant’s service does not meet the criteria for an honorable discharge characterization. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show the applicant’s period of honorable service by granting a partial upgrade. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214, for the period ending 26 November 1986. As a result, add the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820316 UNTIL 850128 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to his under honorable conditions (general) discharge be upgraded to an honorable discharge. 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. ? ADMINISTRATIVE NOTE(S): N/A 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. Title 10, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, U.S. Code (USC), Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 6. 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. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 provides that a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance when in the commander's judgment; the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; the seriousness of the circumstances is such that the Soldier's retention will have an adverse impact on military discipline, good order, and morale; the Soldier will likely be a disruptive influence in duty assignments; the circumstances forming the basis for initiation of separation proceedings will likely continue or recur; the Soldier's ability to perform duties effectively is unlikely; and/or the Soldier's potential for advancement or leadership is unlikely. 7. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. 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. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 8. The Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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.) AR20230005194 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1