IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004121 APPLICANT REQUESTS: in effect, an upgrade of his under honorable conditions (general) characterization of service. 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 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 February 2003 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 was diagnosed with a mental health disorder. He notes mental health is related to his request. 3. After a period of enlistment in the Army National Guard of the United States, the applicant enlisted in the Regular Army on 24 August 2000 for a 4-year period. The highest rank he attained was private first class/E-3. 4. A Standard Form (SF) 93 (Report of Medical History) and the corresponding SF 88 (Report of Medical Examination), dated 18 May 2002, shows the applicant underwent a pre-separation medical examination. The examining provider determined he was medically qualified for separation. 5. Three DA Forms 4187 (Personnel Action) show the following changes in the applicant’s duty status: * Present for Duty (PDY) to Absent Without Leave (AWOL) on 10 July 2002 * AWOL to Dropped from Rolls (DFR) on 9 August 2002 * DFR to PDY on 6 November 2002 6. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 20 November 2002 for being AWOL from on or about 10 July 2002 until on or about 6 November 2002. His punishment consisted of reduction to private/E-2, forfeiture of $619.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction. 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 30 December 2002, shows the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. 8. On 13 January 2003, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of commission of a serious offense. As the specific reason, the commander cited the applicant’s field grade Article 15 for being AWOL from 10 July 2002 to 6 November 2002. The applicant acknowledged receipt of the proposed separation notification. 9. The applicant consulted with counsel on 14 January 2003. He was advised of the basis for the contemplated separation action, the rights available to him, and the effect of a waiver of his rights. He elected not to submit a statement in his own behalf. 10. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of commission of a serious offense. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of a under honorable conditions (general) discharge. 11. On 30 January 2003, the separation authority approved the recommended separation action and directed the issuance of a general discharge. 12. Accordingly, the applicant was discharged on 7 February 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, with separation code JKQ, and reentry code RE-3. His DD Form 214 confirms his characterization of service was under honorable conditions (general). He was credited with 2 years, 1 month, and 15 days of net active service, with lost time from 10 July 2002 to 5 November 2002. 13. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate. 14. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) characterization of service. He contends other mental health condition 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 24 August 2000. * Three DA Forms 4187 (Personnel Action) show the following changes in the applicant’s duty status: * Present for Duty (PDY) to Absent Without Leave (AWOL) on 10 July 2002 * AWOL to Dropped from Rolls (DFR) on 9 August 2002 * DFR to PDY on 6 November 2002 * Applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 20 November 2002 for being AWOL from on or about 10 July 2002 until on or about 6 November 2002. * On 13 January 2003, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of commission of a serious offense. As the specific reason, the commander cited the applicant’s field grade Article 15 for being AWOL from 10 July 2002 to 6 November 2002. * Applicant was discharged on 7 February 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, with separation code JKQ, and reentry code RE-3. His DD Form 214 confirms his characterization of service was under honorable conditions (general). 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 293, DD Form 214, ABCMR Record of Proceedings (ROP), 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. The applicant states, he was diagnosed with a mental health disorder. He notes mental health is related to his request. However, the applicant did not submit any medical documentation substantiating his contention. e. Due to the period of service, no active-duty electronic medical records were available for review. The applicant submitted hard copy medical documentation from his time of service evidencing a medical examination, dated 18 May 2002, indicating he underwent a pre-separation medical examination. The applicant denied any concerns related to a behavioral health condition including depression, anxiety or nervousness. The examination notes the applicant was charged with possession of marijuana and second-degree aggravated assault. A DA Form 3822-R (Report of Mental Status Evaluation), dated 30 December 2002, shows the applicant was psychiatrically cleared for any administrative action deemed appropriate by his command. No mental health concerns were noted, and the applicant was deemed mentally responsible and met medical retention standards. f. Limited VA electronic medical records were available for review and the applicant is not service connected. A Mental Health Consult, dated 13 May 2010, indicates the applicant was seeking services following his release from jail on bail with probable prison sentence. The applicant was diagnosed with adjustment disorder and personality disordered traits. The applicant presented again on 20 May 2010, pending incarceration, he reported feeling depressed related to his stressors and a history of anger. On 10 February 2011, the VA Veteran Justice Outreach Specialist met with the applicant in Essex County jail, he was charged with domestic violence. On 11 February 2011, he was screened and diagnosed with Alcohol dependence and prescription tramadol abuse. The applicant screened negative for depression. A note dated 12 May 2011, indicates the applicant was facing eight separate charges and alternative sentencing was not possible due to their severity. No further encounters with the applicant were available in the VA medical records. g. Based on the information available, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a behavioral health diagnosis that mitigates his misconduct. However, per Liberal Consideration guidelines, applicant’s self-assertion of mental health concerns merits consideration by the board. 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 self-asserts other mental health condition mitigates his discharge (2) Did the condition exist or experience occur during military service? Yes. The applicant did not specify a diagnosis but states he has a mental health condition. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. And while the applicant self-asserts having a mental health condition, he did not provide any medical documentation substantiating any diagnoses. 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 the medical advisory the Board concurred with the advising official finding insufficient evidence to support the applicant had a behavioral health diagnosis that mitigates his misconduct. The Board noted, the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service medical records has insufficient evidence that substantiated his contentions. 2. The Board determined the applicant’s record showed he denied any concerns related to a behavioral health condition including depression, anxiety or nervousness. Furthermore, the applicant was discharged for misconduct and provided an under honorable conditions (General) characterization of service. The Board noted the applicant provided no post service achievements or character letters of support that attest to the applicant’s honorable conduct that might have mitigated his 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. Based on this, 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, USC, 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, USC, 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 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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 PTSD; 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. 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, 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) AR20230004121 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1