IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004267 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) (two) * Department of Veterans Affairs Letter 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 AR20100028872 on 16 June 2011. 2. The applicant states: a. He reported an incident, to his commander, where a pregnant Soldier was being harassed by a staff sergeant. The sergeant found out about it and came after him for turning him in to the captain. He harassed the applicant with extra kitchen patrol, cleaning around the barracks and whatever else he could get him to do. Then he was harassed by fellow Soldiers. Bullying and physical harm was happening, and he started to reach his breaking point. He started to self-medicate with alcohol and drugs. Needless to say, his schooling went down the toilet. Something in his mind snapped and something changed in him. b. He was transferred to Fort Eustis, VA, because of his failure to complete his military occupational specialty (MOS) training at Fort Sam Houston, TX. After his transfer the harassment, verbal and physical, by his peers and staff, continued. He began doing things that were not in his character. He started drinking heavily and then he decided to go absent without leave (AWOL) because he was scared for his life. At the time he wasn’t thinking right. He believes this was the onset of his mental illness. Instead of receiving help for his illness he was discharged. 3. The applicant enlisted in the Regular Army on 29 September 1987 for three years. 4. His DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Record of Assignments) he was recycled in advanced individual training (AIT) and declared an academic failure on 5 February 1988. He did not complete AIT and was not awarded a MOS. 5. By memorandum, dated 12 May 1988, the Commander, 232nd Medical Battalion, Academy Brigade, Academy of Health Sciences, Fort Sam Houston, stated that after a personal interview and careful review in detail of the applicant's training records and specific reasons for failure, it was his opinion that the applicant should be reclassified into another MOS. He also stated that the applicant understood that a second-time training failure would result in separation from the service with no waiver authorized. 6. On 15 July 1988, the applicant's company commander requested a waiver for a rehabilitation transfer for the applicant. The company commander stated the applicant had not demonstrated the potential to successfully meet military standards. It was his judgment the applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 7. The applicant was reported AWOL on 23 July 1988. He surrendered at Fort Story, VA, and was returned to military control on 27 July 1988. 8. The applicant accepted nonjudicial punishment under Article 15, of the Uniform Code of Military Justice (UCMJ) on 1 August 1988, for being AWOL on or about 23 July 1988 until on or about 26 July 1988. 9. The applicant received counseling on 3 August 1988, for failing to have his bed made. He was advised that his performance would result in his promotion to E-2 being further suspended and further UCMJ action. 10. The applicant's company commander notified him on 11 August 1988, of his intent to initiate action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Separations), Chapter 13, for unsatisfactory performance. The commander stated the reason for the action was the applicant's failure to qualify for an MOS. The applicant was recycled and subsequently failed on 5 February 1988. He also stated the applicant displayed an apathetic approach to the military and had verbally indicated he would go AWOL again. 11. The applicant consulted with counsel on 16 August 1988 and acknowledged the proposed separation action under the provisions of AR 635-200, Chapter 13. He waived his right to have his case heard before a board of officers and he elected not to submit a statement in his own behalf. He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life If a general discharge under honorable conditions was issued to him. 12. On 17 August 1988, the applicant's commander recommended he be discharged from the service under the provisions of AR 635-200, Chapter 13, with a general discharge. 13. On 18 August 1988, the request for waiver of rehabilitation transfer was approved. 14. The separation authority approved the recommended discharge on 22 August 1988 and directed the issuance of a general, under honorable conditions discharge. He further directed the applicant be transferred to the Individual Ready Reserve to complete his military service obligation. 15. The applicant was released from active duty on 26 August 1988 and transferred to the U.S. Army Reserve (USAR) Control Group. His DD Form 214 shows he was released under the provisions of AR 635-200, Chapter 13, for unsatisfactory performance. He was assigned Separation Code LHJ with Reenlistment Code 3, 3B, and 3C. His service was characterized as under honorable conditions (general). He completed 10 months and 24 days of net active service. He lost time from 23 July 1988 through 26 July 1988. 16. Chapter 13, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order, and morale. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 17. Orders D-10-586897, dated 3 October 1995, USAR Personnel Center, St. Louis, MO, honorably discharged the applicant from the USAR on 3 October 1995. 18. The applicant provides two copies of his DD Form 214 and a Department of Veterans Affairs decision letter, dated 22 April 2022, which shows he was granted a 40 percent (%) service connection for unspecified bipolar and related disorder with anxious distress, effective 16 May 2012. An evaluation of 100% was assigned on 4 August 2021. 19. On 16 June 2011, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the applicants records and denied his request. 20. On 12 May 2023, in the processing of this application the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports regarding Sexual Assault (Victim of an Investigation) pertaining to the applicant. 21. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 22. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request to upgrade of his under honorable conditions (general) discharge to honorable. He contends he was experiencing harassment and mental health conditions that mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 29 September 1987; 2) The applicant was recycled in advanced individual training (AIT) and declared an academic failure on 5 February 1988. On 12 May 1988, the Commander, 232nd Medical Battalion, Academy Brigade, Academy of Health Sciences, Fort Sam Houston, stated the applicant should be reclassified into another MOS. On 15 July 1988, the applicant's company commander requested a waiver for a rehabilitation transfer for the applicant. The company commander stated the applicant had not demonstrated the potential to successfully meet military standard; 3) The applicant accepted nonjudicial punishment on 1 August 1988 for being AWOL from 23-26 July 1988; 4) The applicant was released from active duty on 26 August 1988, Chapter 13, for unsatisfactory performance. He was assigned Separation Code LHJ with Reenlistment Code 3, 3B, and 3C. His service was characterized as under honorable conditions (general). The applicant was transferred to the U.S. Army Reserve (USAR) Control Group, and he was discharged from the USAR on 03 October 1995; 5) On 16 June 2011, the ABCMR considered and denied the applicant's request to upgrade his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and hard copy VA documentation provided by the applicant were also reviewed. d. The applicant asserts he experienced harassment and while in active service from a staff sergeant and other military members. As a result, he reported to experience mental health symptoms and began to abuse alcohol and illegal drugs to cope. There is insufficient evidence the applicant reported or was found to be abusing alcohol or illegal drugs while in AIT. In addition, there is insufficient evidence he was experiencing harassment or mental health symptoms while on active service. e. A review of JLV provided evidence the applicant has sought VA disability in May 2010 for physical concerns, but he was denied. He later was reevaluated for Bipolar Disorder in 2012, but he was initially denied because a nexus was not established. He again was evaluated in August 2021. The applicant reported being first diagnosed with Bipolar Type II, Disorganized Type in 2006. He reported a lengthy history of substance abuse prior to his military service and occasional use while on active service. He continued to abuse illegal substances after his discharge. He reported a significant history of childhood abuse and significant mood fluctuation prior to his enlistment. However, he denied being diagnosed with Bipolar Disorder while on active service. He was not diagnosed till many years later, and he has not been diagnosed with PTSD. The applicant did not report experiencing any harassment, but he did state he had difficulty with his academics, and he went AWOL to spend time with his girlfriend at the beach. Due to the applicant having a history of Bipolar Disorder, and the applicant reporting mood changes prior, he was awarded disability in 2021 for service-connected Bipolar Disorder. He has engaged in treatment for this condition at the VA since 2022. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of Bipolar Disorder and harassment while on active service. He provided evidence during his VA disability evaluation of being diagnosed with Bipolar Disorder in 2006. He was diagnosed with service-connected in August 2021. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms of Bipolar Disorder and harassment while on active service. He provided evidence during his VA disability evaluation of being diagnosed with Bipolar Disorder in 2006. He was diagnosed with service- connected in August 2021 (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is sufficient evidence that the applicant has been diagnosed with Bipolar Disorder many years after his discharge. Later the VA, due to the long term nature of the disorder and the applicant reporting a significant increase in his symptoms following his discharge, diagnosed him with service-connected Bipolar Disorder. However, there is insufficient evidence the applicant was experiencing significant symptoms of Bipolar Disorder while on active service, which would warrant mitigation of his misconduct. During his disability evaluation, the applicant reported going AWOL due to “wanting to take his girlfriend to the beach” and no longer cared to about the consequences. He reported increased substance abuse while on active service, but the applicant had a significant history of this behavior prior his active service and reported during his disability evaluation using alcohol and illegal substances occasionally while at AIT. There is also insufficient evidence the applicant was experiencing harassment outside of typical responses for misconduct. Therefore, there is only partial evidence in support of the applicant experiencing a mental health condition or experience which mitigates his misconduct. 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. One potential outcome was to grant relief based on finding sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. However, upon review of the applicant’s petition, available military records and medical review, the Board majority concurred with the medical advising official finding insufficient evidence the applicant was experiencing significant symptoms of Bipolar Disorder while on active service, which would warrant mitigation of his misconduct. The Board noted there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Although, the Board notwithstanding the medical opine of partial mitigation for his misconduct, found during the applicant’s 10 months and 24 days of net active service his pattern of misconduct could not be mitigated. 2. During deliberation, the Board noted, through the applicant’s own admission he stated he went AWOL due to “wanting to take his girlfriend to the beach” and no longer cared to about the consequences. The Board found in-sufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post- service achievements or letters of support to weigh a clemency determination. The applicant was discharged for unsatisfactory performance 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, reversal of the previous Board decision is without merit. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 to amend the decision of the ABCMR set forth in Docket Number AR20100028872 on 16 June 2011. 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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 2. Army Regulation (AR) 635-200 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 3. 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 Service Discharge Review Boards (DRB) and Service 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. 4. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20230004267 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1