IN THE CASE OF: 
 
  BOARD DATE: 22 August 2023 
 
  DOCKET NUMBER: AR20230007210 
 
 
APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade of his general, under honorable conditions discharge to honorable; and as a new issue, review of his records for any decorations or awards which he may be authorized. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 23 March 2023. 
 
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 AR20190003444 on 28 August 2020. 
 
2.  The applicant states, in effect, his general discharge should be reviewed based on the evidence of the record. He further requests his records be reviewed for any decorations or awards he is authorized.  
 
3.  The applicant provided his DD Form 149 application outlined above. 
 
4.  A review of the applicant’s service records shows: 
 
 a.  On 21 October 2000, he enlisted in the Regular Army for a period of 3 years beginning at grade/pay grade private first class/E-3 at age 19. He completed Basic Combat Training, and he completed Advanced Individual Training and he was awarded military occupational specialty 92G (Food Service Specialist). 
 
 b.  On 23 March 2000, he was assigned to Headquarters and Headquarters Service Battery, 2nd Battalion, 15th Field Artillery, Fort Drum. 
 
 c.  He was counseled: 
 
• on 3 May 2000, for failure to report to duty at 0530 hours 

• on 18 May 2000, for being late to work for the third time 

• on 9 August 2000, for being late for duty 


• on 26 August 2000, for not completing the food service line set up by 0545 hours, a counseling he disagreed in writing with a notation that he tried to set up the line before 0530 hours but he was behind because more Soldiers were being served and he asked for assistance 

• on 16 November 2000, for being late for duty and substandard uniform, to which he disagreed in writing by a notation that he did wear his class A shoes because he was not going to be present during the inspection 

• on 8 March 2001, for being late for duty, to which he disagreed with a recommendation for Non-Judicial Punishment 

• on 7 June 2001, for failing a record Army Physical Fitness Test (APFT) 


 
 d.  On 26 June 2001, he accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana between 4 March 2001 and 4 April 2001 at or near Fort Drum. His punishment consisted of reduction to private 1/E-1, forfeiture of $521.00 pay for 2 months, and 45 days of extra duty and restriction. He did not appeal this punishment. 
 
 e.  His records are void of a drug toxicology urinalysis test result (DD Form 2624 (Specimen Custody Document – Drug Testing)) showing the date a urine specimen was collected from him, the test results showing positive for Tetrahydrocannabinol (THC), and the test basis of the specimen custody document (DD Form 2624) with the test collection authorization code. 
 
 f.  He was counseled: 
 
• on 31 July 2001 for failing to report to physical training (PT) 

• on 15 August 2001 to register his privately owned vehicle 

• on 30 August 2001 to not allow another associate Soldier in his barracks room due to an unfavorable action, to which he disagreed by notation and wrote a note of disagreement with the counseling 

• on 4 September 2001 for failure to report to PT on 30 August 2001, to which he disagreed by notation and wrote that he left voice messages that his child's mother was sick so he had to take her to the hospital 

• on 5 September 2001 for failure to report to PT on 5 September 2001 

• on 17 September 2001 for failing to show up for duty on time on 16 September 2001 and for revocation of pass privileges 

• on 11 October 2001 for lateness 

• on 12 October 2001 for failure to report to PT on 12 October 2001 

• on 15 October 2001 for breaking restriction on 14 October 2001 by leaving post while on restriction 

• on 18 October 2001 for not participating in the run portion of the APFT, to which he responded in writing that he could get a drink of water and when he returned no one was there 


 g.  On 24 September 2001, he accepted field grade NJP under the provisions of Article 15, of the UCMJ, for wrongfully leaving the scene of a traffic accident without making his identity known on 24 June 2001, while driving a POV which was involved in the accident at Fort Drum. His punishment consisted of forfeiture of $521.00 pay for 2 months, and 45 days of extra duty and restriction. The part of the punishment consisting of forfeiture of $521.00 for 2 months was suspended until 23 December 2001, if not sooner vacated. On 10 October 2001, his appeal to this punishment was denied. 
 
 h.  On 16 October 2001, he was notified to take a physical exam and to undergo a mental health examination. The results of his physical exam and mental health examination are not contained in the available records. 
 
 i.  On 20 November 2001, the Commanding Officer, Headquarters and Headquarters Service Battery, 2nd Battalion, 15th Field Artillery, notified him he was initiating action to separate him for a pattern of misconduct under the provisions of Paragraph 14-12b, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), and advised him of his rights. His commander recommended he receive a general under honorable conditions characterization of service. He stated the following reasons for his proposed action were he failed to report to duty several times, wrongfully used marijuana, made false official statements, and broke restriction.   
 
 j.  On the same date, he acknowledged receipt of his commander's separation notification and elected his rights. He elected his right to consulting counsel and representation by military counsel; he elected to submit statements in his own behalf with his rights election memorandum. Although his right to a hearing before an administrative separation board was not applicable, he noted in writing that he waived his right to such a hearing contingent upon receiving a characterization of service no less than general, under honorable conditions. He understood that he may expect to encounter substantial prejudice in civilian life if a discharge general, under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge general, under honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. His written statement is not contained in the available records. 
 
 k.  On 21 November 2001, his immediate commander initiated separation action against him for misconduct-patterns of misconduct. The intermediate commander recommended approval of separation for patterns of misconduct, and recommended his service be characterized as general, under honorable conditions. In the recommendation, his commander noted he failed to report to duty several times, wrongfully used marijuana, made false official statements, and broke restriction.  
 
 l.  On 26 November 2001, his intermediate commander forwarded the recommendation for his separation with a recommendation he be given a general, under honorable characterization of service for patterns of misconduct. 
 
 m.  On 27 November 2001, the separation authority (Colonel, 10th Aviation Brigade, 10th Mountain Division), approved his separation and directed his service be characterized as general, under honorable conditions. He further directed that he not be transferred into the U.S. Army Reserve (Inactive Ready Reserve). 
 
 n.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was awarded or authorized the Army Service Ribbon. 
 
o.  On 27 December 2001, he was discharged with a characterization of service of general, under honorable conditions. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct. He completed 2 years, 2 months, and 7 days of net active service during this period with no time lost. He was awarded or authorized: 
 
• Army Service Ribbon 

• Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 


 
4.  On 28 August 2020, in ABCMR Docket Number AR20190003444, the Board found insufficient evidence of in-service mitigation to overcome the misconduct and determined the character of service the applicant received at separation was not in error or unjust. 
 
5.  A review of the applicant’s record confirms the National Defense Service Medal was not recorded on his DD Form 214. The award 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 a discharge upgrade. 
 
6.  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. 
 
7.  MEDICAL REVIEW: 
 
    a.  Background: The applicant is requesting a reconsideration of his previous request for an upgrade of his general discharge to an honorable discharge. He contends other mental health conditions 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 21 October 2000.  

• On 24 September 2001, he accepted an Article 15. Per the CID report provided by the applicant to the prior board, a vehicle driven by the applicant struck a soldier on 24 June 2001; the applicant did not stop to render assistance and subsequently fled the scene. 

• On 21 November 2001 court-martial charges were preferred against him due to patterns of misconduct to include failure to report to duty several times, wrongful use of marijuana, making false official statements, and breaking restriction. 

• The applicant was discharged on 27 December 2001 under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct. 


 
    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, ABCMR Record of Proceedings (ROP), DD Form 214, and 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.  No active-duty electronic medical records were available for review and no hard copy medical documentation from the time of service was submitted for review.  
 
    e.  The applicant is 100% service connected for Major Depressive Disorder with an effective date of 2 September 2022 which includes 30% service connection for Hypochondriasis. The applicant was diagnosed with Major Depressive Disorder over 20 years post military discharge and his diagnosis of Hypochondriasis is indicative of someone who exaggerates his symptoms without a medical basis.  
 
    f.  After review of all available documentation, there is no medical documentation of any in-service BH diagnoses. The applicant was service connected by the VA for Major Depressive Disorder but his diagnosis is effective over 20 years post-military service.         
    g.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence to support that the applicant had a BH condition during his time in service that would mitigate some his misconduct.  
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 contends other mental health condition mitigates his pattern of misconduct discharge.  
 
    (2)  Did the condition exist or experience occur during military service? Yes. The applicant is service connected for Major Depressive Disorder. 
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant is service connected by the VA for Major Depressive Disorder, which mitigates some of his misconduct. Given the association between depression and avoidant behaviors, there is a nexus between his diagnosis of Major Depressive Disorder and his multiple failures to report and his offense of breaking restriction. However, neither Major Depressive Disorder or Hypochondriasis mitigate his remaining offenses of making false official statements and fleeing the scene of an accident without rendering assistance, as neither condition is associated with an inability to tell right from wrong and act in accordance with the right.  
 
BOARD DISCUSSION: 
 
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 a pattern of misconduct and he was issued a general discharge. The Board reviewed and agreed with the medical official’s finding that the applicant is service connected by the VA for Major Depressive Disorder, which mitigates some of his misconduct (there is a nexus between his diagnosis of Major Depressive Disorder and his multiple failures to report and his offense of breaking restriction). However, the Board was also persuaded by the finding that neither Major Depressive Disorder or Hypochondriasis mitigate his remaining offenses of making false official statements and fleeing the scene of an accident without rendering assistance, as neither condition is associated with an inability to tell right from wrong and act in accordance with the right. 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: 
 
Except for the correction addressed in Administrative Note(s) below, 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 to amend the decision of the ABCMR set forth in Docket Number AR20190003444 on 28 August 2020. 
 
  8/22/2023

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. 
 
 
ADMINISTRATIVE NOTE(S):   
 
The applicant's records contain sufficient evidence to support an additional award not shown on his DD Form 214 for the service period ending 27 December 2001. His DD Form 214 will be administratively corrected without Board action to show award of: 
 
• National Defense Service Medal 

• Global War on Terrorism Service Medal 


 
  
REFERENCES: 
 
1.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to ensure the readiness and-competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. 
 
 a.  Honorable discharge. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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.  General discharge. 
 
  (1)  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: 
 
  (2)  A characterization of under honorable conditions may-be issued only when the reason for :separation. specifically allows such characterization. It will not be issued to soldiers solely upon separation at expiration of their period of, enlistment, military service obligation, or period for which called, or ordered to AD.  
 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to 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. 
 
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