IN THE CASE OF: BOARD DATE: 2 January 2024 DOCKET NUMBER: AR20230006695 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) • DD Form 149 (Application for Correction of Military Record) • Medical documents (29 pages) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170014505 on 6 August 2020. 2. The applicant states, in effect: a. He would like to get a medical discharge due to the severity of his medical condition in which everyone was wrong as to give him an under other than honorable due to their ignorance to his condition. He had many issues in the four weeks it took the U.S. military to get rid of him. b. The correction should be made because he was kicked out for bad misconduct and that wasn't the case. He had mental health issues, which was not discovered until nine (9) months following his discharge. He was diagnosed with a mental illness condition in which he is still addressing this condition today with Veterans Affairs. 3. The applicant provides 29 pages of medical documents, dated 1 August 2023. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 14 September 1983 as a 77F, Petroleum Supply Specialist. He reenlisted on 23 December 1987. b. He accepted nonjudicial punishment as follows: (1) On 31 January 1989 for on or about 9 January 1989, without authority, absent himself from his unit, and did not return until on or about 23 January 1989; he was reduced to specialist (SPC)/E-4. (2) On 17 February 1989 for on or about 7 February 1989, having received a lawful command from his superior commissioned officer, to be at ease, or words to that effect, willfully disobey the same; also were derelict in the performance of his duties in that he willfully failed to maintain victory standards while in the field, as it was his duty to do so; he was reduced to private first class (PFC)/E-3. c. His duty status changed as follows: • From Ordinary Leave (LV) to Absent Without Leave (AWOL), 9 January 1989 • From AWOL to Present for Duty (PDY), 23 January 1989 • From PDY to AWOL, 4 March 1989 • From AWOL to PDY, 6 March 1989 d. DD Form 458 (Charge Sheet), dated 21 March 1989, court-martial charges were preferred against the applicant as follows: (1) Charge I (Violation of the UCMJ, Article 86): • Specification 1: on or about 9 January 1989, without authority, absent himself from his unit and did remain so absent until on or about 23 January 1989 • Specification 2: on or about 4 March 1989, without authority, absent himself from his unit and did remain so absent until on or about 6 March 1989 • Specification 3: on or about 18 February 1989, without authority, fail to go at the time prescribed to his appointed place of duty • Specification 4: on or about 19 March 1989, without authority, fail to go at the time prescribed to his appointed place of duty (2) Charge 2 (Violation of the UCMJ, Article 112a): • Specification 1: on or between 24 December 1988 and 23 January 1989, wrongfully use some amount of marijuana • Specification 2: on or between 21 January 1989 and 23 January 1989, wrongfully use some amount of cocaine e. On 27 March 1989, the applicant waived medical examination for separation from active duty. f. On 30 March 1989, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to her. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: • by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge • he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws • he was advised he could submit any statements he desired in his own behalf; he did not submit any statements g. The applicant’s chain of command recommended approval of the requested discharge for the good of the service under other than honorable conditions. h. The separation authority approved the applicant's request for discharge on 14 April 1989, under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be discharged under other than honorable conditions. i. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged on 25 April 1989 under the provisions of AR 635-200, chapter 10, For the Good of the Service, with an under other than honorable conditions characterization of service. He served 5 years, 7 months, and 12 days of net active service this period, with lost time from 10 to 22 January 1989, and 5 March 1989. (1) Item 13 (Decoration, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the following: • Army Service Ribbon • Noncommissioned Officer Professional Development Ribbon w/one • Overseas Service Ribbon • Army Good Conduct Medal • Expert Marksmanship Qualification Badge (Rifle and Grenade) • Driver and Mechanic Badge (2) Item 18 (Remarks) listed his reenlistment but not his continuous honorable service. 5. There is no evidence the applicant applied to the Army Discharge Review Board within the Board’s 15 year statute of limitations. 6. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 7. 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 8. MEDICAL REVIEW: a. Background: The applicant is requesting to change his discharge from Under Other Than Honorable Conditions to Honorable. He elaborated, “to get a medical discharge due to the severity of his medical condition in which everyone was wrong as to give him an other than honorable due to their ignorance to his condition. He had many issues in the four weeks it took the U.S. military to get rid of him…The correction should be made because he was kicked out for bad misconduct and that wasn't the case. He had mental health issues, which was not discovered until nine (9) months following his discharge. He was diagnosed with a mental illness condition in which he is still addressing this condition today with Veterans Affairs.” 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 Regular Army on 14 Sep 1983 • The service record indicates he was assigned overseas to Germany from 16 Jun 1985 - 16 Jun 1988. • On or about 09-23 Jan 1989 and 04-06 Mar 1989, applicant was reported as AWOL while assigned to a unit at Fort Stewart, GA. • On 21 Mar 1989, court martial proceedings were initiated for failure to report, disobeying an order, marijuana use between Dec 1988 - Jan 1989 and cocaine use from 21-23 1989, as well as the noted AWOL episodes. • A Request for Discharge for the “Good of the Army” was initiated on 30 Mar 1989. • The applicant’s separation packet was available for review. Also, the applicant’s service • record includes his DD Form 214 (Report of Separation from Active Duty), which shows that the Army discharged the applicant “Under Other than Honorable Conditions” on 25 Apr 1989. 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), his DD Form 214, as well as documents from his service record. The VA electronic medical record and DOD health record were reviewed through Joint Longitudinal View (JLV). d. This applicant asserted that undiscovered mental health conditions were a mitigating factor in his discharge. He also contends that he was diagnosed with mental health conditions shortly after his discharge. His service record and supporting documents did contain some JLV treatment records which primarily noted his behavioral health conditions (as noted in the JLV Problem List) and some medications he had been prescribed. No other medical or behavioral health records were provided. There was a lack of viable evidence that the applicant had ever been diagnosed or treated for a potentially mitigating condition during his time in service. e. Per the applicant’s VA EHR, he is not indicated as service connected for any medical or behavioral health conditions. The JLV record indicates his first behavioral health session was 29 Feb 2016. A subsequent BH session with a counseling psychologist indicated, “Veteran reported early onset of symptoms, stating that his 5th grade teacher suggested to his mother that he needed mental healthcare, but that his mother refused to seek it for him. He reported being unaware that he was experiencing mental health symptoms until his discharge from the military in 1988 or 1989, when he encountered difficulties with the…attitudes…style of thinking …in the civilian world…Reported working with the psychiatrist in Hawaii…4 years. Also worked with several psychiatrists while incarcerated from 2002 until 2009 for theft (shoplifting to support his substance use disorder).” On 09 Aug 2018, he reported to a BH provider that “he hears his mother's voice. Reported hallucinations prior to that time as well…Inpatient: Hawaii (for substance use and depression). Reported 3 inpatient hospitalizations (one for 6 months, one for 1 year). Also received inpatient substance abuse and MH tx for 1 year while incarcerated.” The JLV Problem List included Depression Unspecified; Adjustment Disorder Unspecified with Mixed Disturbance of Emotions and Conduct; ADHD, Unspecified Type; Unspecified Mood (Affective) Disorder; Cocaine Dependence, Uncomplicated; Other Stimulant Dependence, Uncomplicated; Cocaine Use, Unspecified and the first diagnosable condition, “Homeless” (Jan 2016). f. In summary, applicant is not currently service connected for any mitigating mental health conditions. After reviewing the application and all supporting documents, this Agency Medical Advisor cannot provide an opine regarding potentially mitigating conditions or experiences without documentation of behavioral health issues during his time in service. The JLV records specific to behavioral health conditions commence some twenty-five years following his discharge and appear to have substance abuse as a primary focal point. Documentation of behavioral health treatment for symptoms like with Bipolar, auditory hallucinations and depression closer to his time in service would certainly serve to establish a greater probability of service-related conditions adversely impacting his behavior (i.e. AWOL, FTR, substance abuse and disobeying orders). Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge. There is insufficient evidence of any mitigable behavioral health conditions during his time in service. (2) Did the condition exist or experience occur during military service? There is a lack of documentation to support the presence of behavioral health conditions during applicant’s time in service aside from substance abuse. (3) Does the condition or experience actually excuse or mitigate the discharge? There is an absence of documented behavioral health conditions during his time in service to mitigate for applicant’s misconduct. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially 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 and record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry and under other than honorable conditions discharge. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference 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. b. The Board did note however that the applicant’s service from first date of enlistment to the date before his last reenlistment was honorable. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, in addition to listing immediate reenlistment(s), an entry is required for continuous honorable service from first day of service for which DD Form 214 was not issued until date before commencement of current enlistment. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20170014505 on 6 August 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statements to block 18 (Remarks) of his DD Form 214: • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19830914 to 19871222 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 upgrading the characterization of his discharge. 1/2/2024 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. AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 2. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//