IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230006850 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an under honorable conditions (general) discharge * a video/telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 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, 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 while attending high school, he was prescribed Attention Deficit Hyperactivity Disorder (ADHD) medicine. He was admitted to as a teenager for mental health treatment to, Psychiatric Services, ,. He enrolled in the Turner Job Corp, , and received his General Educational Diploma (GED). He remained on ADHD medicine to control his behavior. He worked in jobs following graduation and did not seem to have a need for the ADHD medicine. He enlisted in the Army and had not been on any medication or needed it. After completing basic training and assignment to technical school, he had severe episodes which caused him to be released with an under other than honorable conditions (UOTHC) discharge. He requests the upgrade because the actions that he exhibited would not have happened if he had received the ADHD medication that he had previously been prescribed. 3. On the applicant's DD Form 149, he indicates mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. However, supporting documentation was not attached to the applicant’s request. 4. The applicant enlisted in the Army Reserve on 13 June 2003 for 4 years and entered active duty in the Regular Army on 17 July 2003. He completed training with award of the military occupational specialty 92Y (Unit Supply Specialist). 5. The applicant was reported absent without leave (AWOL) from 16 January 2004 to 27 January 2004, 30 January 2004 to 22 February 2004 and in Correctional Custody from 23 February 2004 to 29 March 2006. 6. The applicant was found guilty by the County Circuit Court, ,. on 10 August 2005 for the charges of burglary, stealthy entry, and three counts of grand theft. He was sentenced to 18 months confinement and 42 months of probation. He was confined at the, ,. 7. The applicant's immediate commander notified the applicant, on 20 January 2006, of his intent to initiate actions to separate him under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-5 for conviction by a civil court. 8. The applicant consulted with legal counsel on 3 February 2006. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He waived all of his administrative rights and elected not to submit a statement in his own behalf. 9. On 10 February 2006, his immediate commander-initiated action to separate him under the provisions of AR 635-200, Chapter 14, paragraph 14-5a for conviction by a civil court. The commander recommended he receive an under other than honorable conditions discharge. The intermediate commander recommended approval. 10. On 14 March 2006, consistent with the chain of command recommendations, the separation authority approved the applicant's discharge. He directed the applicant be issued a UOTHC Discharge Certificate and not be transferred to the Individual Ready Reserve. 11. The applicant was discharged on 29 March 2006, in the pay grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, Chapter 14, for misconduct and his service characterization was UOTHC. He was credited with 6 months and 1 day of net active service. He is shown to have had three periods of lost time totaling 802 days. He was assigned separation code JKB and the narrative reason for separation was listed as “Misconduct (Civil Conviction),” with a reentry code of 3. 12. On 14 February 2011, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 13. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 14. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions discharge. The applicant asserts other mental health as a mitigating factor in 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 Regular Army on 13 June 2003. * The applicant was reported absent without leave (AWOL) from 16 January 2004 to 27 January 2004, 30 January 2004 to 22 February 2004 and in Correctional Custody from 23 February 2004 to 29 March 2006. * The applicant was found guilty by the County Circuit Court, ,. on 10 August 2005 for the charges of burglary, stealthy entry, and three counts of grand theft. He was sentenced to 18 months confinement and 42 months of probation. He was confined at the, ,. * The applicant's immediate commander notified the applicant on 20 January 2006 of his intent to initiate actions to separate him under AR 635-200, Chapter 14, paragraph 14-5 for conviction by a civil court. * The applicant was discharged on 29 March 2006, with an UOTHC characterization of service. * On 14 February 2011 the ADRB denied his request for an upgrade of his discharge. c. 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, 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. d. The applicant asserts that other mental health, more specifically ADHD, mitigates his misconduct. He reported having behavioral problems, having been admitted to an institution as a teenager, and having been diagnosed and treated for ADHD throughout his youth. He noted getting off the medication after graduation from high school and doing well without it until AIT. He asserts that “the actions I exhibited would not have happened if I had received the ADHD medication that I had previously been prescribed.” e. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army, and of the few records available, no mental health records were present. His enlistment Report of Medical Examination dated 13 June 2003 indicated no psychiatric or neurologic concerns. On his enlistment forms though, he did admit to prior substance use. His service record and supporting documents did not contain his service treatment records (STR) and no other records were provided to substantiate his claim of a mental health condition. f. Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Through use of JLV, this applicant did not have any “Community Health Summaries and Documents” available to review. No other medical records were provided. g. 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. In addition, the severity of the misconduct outweighs any potential mitigation. 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 other mental health conditions (ADHD) as a mitigating factor in his misconduct and discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts that this condition was present and untreated during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted untreated ADHD as a mitigating factor in his misconduct and discharge. There are several key points to consider. First, there is no evidence beyond self-report that the applicant was diagnosed with ADHD, nor any other mental health condition prior to, during, or after his service. Second, ADHD as a standalone condition, is not typically a mitigating condition. Third, there is no nexus between his reported mental health condition and burglary - stealthy entry and/or grand theft (x3). While ADHD can impact one’s ability to attend/concentrate and may cause hyperactive and impulsive behaviors, these charges would not be considered part of the natural history and sequalae of ADHD. Fourth, if ADHD was present at the time of his misconduct, it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. As suggested in the Kurta memo, the premeditated bad conduct outweighs relief offered under Liberal Consideration guidance. 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 insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. In addition, the severity of the misconduct outweighs any potential mitigation. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. It was noted by the Board the applicant provided insufficient evidence of post-service achievements or character letters of support that can attest to his honorable conduct that might have mitigated the discharge characterization. Furthermore, the Board considered liberal consideration but determined based on the opine the applicant’s record is absent a nexus between his reported mental health condition and burglary - stealthy entry and/or grand theft (x3). While ADHD can impact one’s ability to attend/concentrate and may cause hyperactive and impulsive behaviors, these charges would not be considered part of the natural history and sequalae of ADHD. The Board agreed based on the applicant’s misconduct, his actions does not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board found the applicant’s character of service received upon separation was not in error or unjust. Therefore, relief was denied. 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 : : : 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, United States Code (USC), section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14–5 (Conviction by Civil Court) provides that a Soldier may be discharged when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present: (1) A punitive discharge authorized for the same or a closely related offense under the Manual for Court-Martials, as amended. (2) The sentence by civil authorities includes confinement for six months or more, without regard to suspension or probation. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, 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 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.) AR20230006850 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1