IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230004005 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to a fully honorable discharge due to a medical disability. He also requests a personal appearance with the Board, via a video or telephone conference call. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) 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 he suffers from chronic sinusitis. He is requesting this correction so that he may be eligible for better benefits and be able to obtain better transportation. He is hopeful he will be able to get his “veteran’s license.” He previously used illegal substances; he has been clean 5 years. 3. The applicant enlisted in the Regular Army on 30 November 1988. He held military occupational specialty 12B (Food Service Specialist). 4. On 5 July 1990, the applicant received an Administrative Letter of Reprimand (LOR) for driving under the influence (DUI). He was apprehended by military police for DUI on 20 June 1990. A chemical test revealed his blood alcohol content was .10 in violation of the Army Regulation (AR) and Texas law. He was advised this reprimand was imposed as an administrative measure. 5. On 30 August 1990, the officer exercising general court-martial jurisdiction over the applicant received and considered endorsements and matters submitted in rebuttal. Those documents including the applicant’s response are not available for review with this case. This officer directed the LOR be filed in the applicant’s Military Personnel Records Jacket for a period of 3 years or until he left Fort Bliss, TX, whichever was sooner, after which time it would be destroyed. 6. The applicant left his unit in an absent without leave (AWOL) status from 28 February to 12 March 1992. 7. A Standard Form (SF) 88 (Report of Medical Examination), dated 6 April 1992, shows he underwent an examination, his health was good, he had no disabilities, and no permeant profile. He was found qualified for separation. 8. His SF 93 (Report of Medical History), dated 6 April 1992, shows the applicant indicated he was in good health and was not taking any medication. He also claimed he had chronic or frequent colds. 9. The applicant underwent a mental status evaluation 8 April 1992, which determined he had the mental capacity to understand and participate in the proceedings [deemed appropriate by his chain of command]. He was mentally responsible, and met the retention requirements of chapter 3, AR 40-501. Other (See Remarks), which shows: a. There was no psychiatric disease or defect which warrants disposition through medical channels. b. This individual is psychiatrically cleared for any administrative (or judicial) action deemed appropriate by [the chain of] command. 10. On 16 April 1992, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from his unit at Fort Bliss from 28 February to 12 March 1992. His punishment consisted of reduction from pay grade E-4 to E-3 and a forfeiture of $501 pay for 2 months. 11. On an unspecified date, the applicant was informed by his commander that he was initiating action to separate him from the Army under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct, with an under honorable conditions (general) characterization of service. The commander stated the reasons for the proposed separation action was the applicant's NJP and AWOL offense. The applicant was advised of his rights. 12. On an unspecified date, the applicant acknowledged notification, declined to consult with legal counsel, and acknowledged he was advised of the basis for the contemplated separation action. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He also acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. He also declined to submit statements in his own behalf. 13. On 21 April 1992, the applicant’s commander and intermediate commander recommended the applicant’s separation under the provisions of AR 635-200, paragraph 14-12c, due to misconduct with a general discharge. 14. On 22 April 1992, the applicant requested placement on excess leave pending completion of the discharge process. 15. On 23 April 1992, a memorandum showing the separation authority approved the applicant's separation action under the provisions of AR 635-200, chapter 14, with his service characterized as general under honorable conditions. This memorandum in his available records was not signed 16. On 1 May 1992, the applicant declined a further separation medical examination. 17. On 1 May 1992, the applicant was discharged in pay grade E-3. His DD Form 214 in conjunction with a DD Form 215 (Correction to DD Form 214) shows he completed 3 years, 3 months, and 22 days of active service. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) contains no awards. His DD Form 214 also show the following pertinent entries: * Remarks – Excess Leave Credit: “920422-920501 [22 April 1992 – 1 May 1992] * Character of Service – Under Honorable Conditions [General] * Separation Authority – AR 635-200, paragraph 14-12c * Separation Code – JKN * Reentry Code – RE-3 * Narrative Reason for Separation – Misconduct – Minor Disciplinary Infraction 18. The applicant is entitled to awards that are not listed on his DD Form 214. Headquarters, 3rd Armored Cavalry Regiment, Fort Bliss, TX, announced award of the: * Army Achievement Medal for meritorious achievement from 17 to 31 March 1991, in Orders 008-81, dated 29 March 1991 * Army Commendation Medal for meritorious achievement from 1 October 1990 - 15 March 1991 in Orders 038-08, dated 20 June 1991 19. The above awards are further addressed in the Administrative Notes portion of these proceedings. 20. On 10 July 2010, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. a. On 19 July 2010, the Department of Veteran’s Affairs Medical Center (VAMC), Hampton, VA, provided the ADRB a letter stating the applicant was at the Hampton VAMC Domiciliary active in his treatment. He was coping with a major mental illness that had been present for years. He hid the illness with substance use and was now getting treatment for both, mental illness, and substance abuse. He was seeking a change in his discharge status. This letter was designed to inform that he was in treatment and compliant with medication at that time. b. On 8 December 2010, the applicant was advised after further review of his application it was determined his request must be directed to the ABCMR for consideration. The statutory period for appeals prohibited the ADRB from processing applications received after 15 years from the date of discharge or release from active duty. This letter was returned undeliverable. It appears his National Archives and Records Administration record may have also been unavailable at the time. 21. In regard to the applicant's request for a personal appearance with the Board, via a video or telephone conference call, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 22. 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 1 May 1992 discharge characterized as under honorable conditions (general) and, in essence, a referral to the Disability Evaluation System (DES). He states: “I have chronic sinusitis. I hope to have better benefits, so I cave better transportation.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 30 November 1988 and was discharged on 1 May 1992 under the separation authority provided by paragraph 14-12c of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Commission of a serious offense. It shows no periods of service in a hazardous duty pay area. d. The applicant received a General Officer Memorandum of Reprimand (GOMOR) on 5 July 1990 for driving under the influence of alcohol on Ft. Bliss. e. The applicant received an Article 15 on 16 April 1992 for a period of absence without leave [AWOL] from 28 February 1992 thru 12 March 1992. f. In an undated memorandum, his company commander notified him of the initiation of separation action under paragraph 14-12b of AR 635-200: “The reasons for my proposed action are: You received an Article 15 of 16 April 1992 for an AWOL offense.” g. He completed his pre-separation medical examination on 6 April 1992 at which time he wrote on the applicable forms that he was in good health, was not taking any medications, had no disabilities, and was not on a permanent physical profile. h. On his mental status evaluation completed 8 March 1992, the provider documented a normal examination with no mental health conditions. The provider opined: “This individual meets the retention standards prescribed in Chapter 3, AR 40- 501 [Standards of Medical Fitness], and there is no psychiatric disease or defect which warrants disposition through medical channels. This individual is psychiatrically cleared for any administrative (or judicial) action deemed appropriate by command. i. His company commander’s 21 April 1992 recommendation for his chapter 14 discharge was approved by the battalion commander on 23 April 1992. j. JLV shows he receives care as a non-service-connected Veteran and has been diagnosed with non-service-connected depression and chronic schizoaffective disorder. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A ? 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 determined there is insufficient evidence that referral to DES is warranted. The Board noted the applicant is received care as a non-service-connected Veteran and has been diagnosed with non-service-connected depression and chronic schizoaffective disorder. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. 2. The Board agreed the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that 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. Therefore, the Board denied relief. 3. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 4. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 5. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service record shows his DD Form 214, item 13 should be amended by adding the Army Achievement Medal and the Army Commendation Medal. 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. Army Regulation (AR) 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. 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. AR 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 4. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. 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 (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (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) AR20230004005 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1