IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230003992 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 13 January 2023 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, in effect, he married young at the age of 17 before going to basic training. He didn't have the understanding of what being a man was, until after basic training and it was too late to turn back. His wife, who was 7 years older, cheated on him when he would go to the field and his mental health never was normal after this. He regrets that he couldn't be all he could for his country. 3. On his DD Form 149, the applicant notes other mental health is related to his request. 4. The applicant enlisted in the regular Army on 23 October 1987, for a period of 4 years. 5. His DA Form 2-1 (Personnel Qualification Record) shows the highest rank obtained was the rank/grade of Specialist (SPC)/E-4 with a date of rank of 1 March 1990. 6. Eight DA Forms 4856 (Developmental Counseling Form) shows he was counseled for the following: * letters of indebtedness on 21 November 1989 * failure to report on 21 November 1989 * failure to follow instructions on 22 November 1989 * absent from formation on 29 November 1989 * absent from appointed place of duty on 5 April 1990 * failure to uphold lease contract on 1 May 1990 * late for 1300 formation on 20 June 1990 * inform applicant the chain of command decided to process chapter proceedings on 11 July 1990 7. A DA Form 2627-1 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment under Article 15, UCMJ for failing to report for movement to the field and obeying an order or regulation on 13 March 1990. Punishment imposed was an oral reprimand and 14 days extra duty – suspend 60 days. 8. On 24 October 1990, the applicant's immediate commander notified the applicant of his intent to recommend him for separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12b (acts or patterns of misconduct). He noted his reasoning for the proposed action was, the applicant failed to pay just debts, had been absent without authority, and had abused his spouse. 9. On 29 October 1990, the applicant's immediate commander-initiated action for separation under the provisions of AR 635-200, paragraph 14-12b. 10. The applicant consulted with counsel on 5 November 1990 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He requested consideration of his case by an administrative separation board, appearance before a board, and representation by counsel. He elected not to submit a statement on his own behalf. Additionally, he understood he may encounter prejudice in civilian life. 11. On 13 November 1990, the applicant's intermediate commander recommended separation under AR 635-200, paragraph 14-12b, for misconduct with a characterization of service as general, under honorable conditions. 12. On 19 November 1990, the separation authority approved the recommended separation under the provisions of AR 635-200, paragraph 14-12b (acts or patterns of misconduct) and further directed the applicant be issued a general discharge. 13. He was discharged on 10 December 1990, under the provisions of AR 635-200, paragraph14-12b, by reason of patterns of misconduct, in the rank/grade of SPC/E-4. His service was characterized as under honorable conditions (general). He received separation code "JKM" and reentry code of "RE-3". He completed 3 years, 1 month, and 13 days of net active service. He had time lost from 26 July 1990 to 30 July 1990. 14. There is no indication the applicant applied to the Army Discharge Review Board for request of discharge upgrade within that Board's 15-year statute of limitations. 15. Regulatory guidance states when an individual is discharged under the provisions of AR 635-200, Chapter 14, for misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 16. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance 17. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests consideration for discharge upgrade from Under Honorable Conditions (General) to Honorable. He indicated that his request is related to Other Mental Health. He shared that he married prior to basic training at age 17, and his mental health was impacted by reported infidelity of his wife. b. The applicant’s record was summarized in the ABCMR ROP. Of note, he entered service 23Oct1987. His primary MOS was 11H10 Heavy Vehicle Antiarmor Weapon Infantryman. The DD Form 214 did not show foreign service. He was discharged on 10Dec1990 under provisions of AR 635-200 para 14-12b for patterns of misconduct. The offenses listed in the official notification included: Failed to pay just debts; he was absent without authority; and he had abused his spouse. His service was characterized as Under Honorable Conditions, General. c. The record indicated that he was required to undergo a mental status evaluation and that a Report of Mental Status Evaluation was attached; however, the report was not found for this review. JLV search revealed that the applicant was not service connected by the VA for any disabilities. A mental health diagnosis was not listed in the VA record problem list. A 28Jul2011 Primary Care Initial Evaluation Durham VAMC visit showed PHQ-2 screen for depression score was 0 (negative); PTSD 4Q score was 0 (negative) and the results of the AUDIT-C screen indicated he was drinking above recommended alcohol limits. Sleep disturbance (listed in the Assessment/Plan section) was attributed to anxiety and possibly the effects of alcohol. A formal boardable mental health diagnosis relevant to his time in service was not listed in the record. d. The applicant’s statement concerning mental health duress due to his wife’s infidelity is acknowledged. However, there was no documentation to support a boardable behavioral health diagnosis including PTSD, TBI or MST while he was in service. In accordance with the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance, there was no mental health diagnosis to consider with respect to mitigation of misconduct for the purpose of a discharge upgrade. It should be noted that failure to pay just debts and abuse of his spouse would not be mitigated by a mental health diagnosis. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. A boardable mental health condition was not documented in the record. (2) Did the condition exist, or did the experience occur during military service? No. A boardable mental health condition was not documented in the record. (3) Does the condition or experience actually excuse or mitigate the discharge? No. A boardable mental health condition was not documented in the record. 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 documentation to support a boardable behavioral health diagnosis including PTSD, TBI or MST while he was in service. The Board noted, the medical opine found no mental health diagnosis to consider with respect to mitigation of misconduct for the purpose of a discharge upgrade. 2. The Board determined the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board found the applicant no post service achievements or character letters of support that could attest to his honorable conduct for the Board consideration of clemency. Based on the preponderance of evidence the Board found there was insufficient evidence of in-service mitigation to overcome the misconduct. Further, the Board determined the applicant’s discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an honorable discharge. As such, 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, 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. Section 1556 of Title 10, U.S. Code, 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 (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-3 (Secretarial plenary authority) states, separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. d. 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. (1) Paragraph 14-3 states 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 such is merited by the Soldier's overall record. (2) Section III (Acts or Patterns of Misconduct), paragraph 14-12b, states Soldiers are subject to action per this section for a pattern of misconduct. A pattern of misconduct consisting of one of discreditable involvement with civil or military authorities and discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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 Post-Traumatic Stress Disorder; 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 to 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/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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003992 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1