IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004271 APPLICANT REQUESTS: an upgrade of his characterization of service and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 19 December 2022 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 felt he was discriminated against by his first sergeant, and he suffered from extreme anxiety and depression. His mental state led him to partake in marijuana and he failed a drug test. On his DD Form 149 he notes other mental health issues are related to his request. 3. The applicant enlisted in the Regular Army on 6 January 1997, for a period of 3 years. The highest rank he attained was private (PV2)/E-2. 4. A DD Form 2624 (Specimen Custody Document – Drug Testing) shows the applicant tested positive for Tetrahydrocannabinol (THC) on 28 August 1997. 5. A DA Form 4856 (General Counseling Form) shows on 22 September 1997, he was counseled for positive drug test results and was informed of recommendation to the commander for consideration for elimination from the Army. 6. On 12 November 1997, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance, marijuana. His punishment was reduction to private/E-1 and forfeiture of $450.00 pay per month for two months. 7. On 2 December 1997, a memorandum by the legal review states the applicant's command has recommended separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 14-12c (commission of a serious offense). The recommendation was based upon wrongful use of a controlled substance, marijuana, by the applicant. Additionally, it states the Soldier is not entitled to a board if a general discharge is approved. 8. On 3 December 1997, the applicant's immediate commander notified the applicant of his intent to recommend him for separation under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct - commission of a serious offense. He noted the specific reasons was the applicant’s positive drug test results. 9. On the same day, the applicant's immediate commander formally recommended the applicant be separated under AR 635-200, paragraph 14-12c (commission of a serious offense) and that he be issued a general discharge. 10. The applicant consulted with counsel on 4 December 1997 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He elected not to submit a statement in his own behalf. He did request a personal appearance before an administrative separation board and to consult counsel. He further understood he may encounter prejudice in civilian life. 11. On 8 December 1997, the applicant's intermediate commander formally recommended the applicant be separated under AR 635-200, paragraph 14-12c (commission of a serious offense) and that he be issued a general discharge. 12. The separation authority approved the recommended discharge and directed the applicant be issued a general discharge. 13. The applicant was discharged on 17 December 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct, in the grade of E-2. His service was characterized as under honorable conditions (general). He received a separation code of "JKK" and reentry code "4". He completed 1 year, 3 months, and 1 day of net active service. 14. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 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. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 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. 17. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance 18. 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 6 January 1997. * A DD Form 2624 (Specimen Custody Document – Drug Testing) shows the applicant tested positive for Tetrahydrocannabinol (THC) on 28 August 1997. * A DA Form 4856 (General Counseling Form) shows on 22 September 1997, he was counseled for positive drug test results and was informed of recommendation to the commander for consideration for elimination from the Army. * On 12 November 1997, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance, marijuana. * On 2 December 1997, a memorandum by the legal review states the applicant's command has recommended separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), Chapter 14-12c (commission of a serious offense). The recommendation was based upon wrongful use of a controlled substance, marijuana, by the applicant. * Applicant was discharged on 17 December 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct. His service was characterized as under honorable conditions (general). He received a separation code of "JKK" and reentry code "4". 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, 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. The applicant states, in effect, he felt he was discriminated against by his first sergeant, and he suffered from extreme anxiety and depression. His mental state led him to partake in marijuana and he failed a drug test. On his DD Form 149 he notes other mental health issues are related to his request. d. Due to the period of service, no active-duty electronic medical records were available for review. The applicant submitted no hard copy medical documentation from his time of service evidencing a behavioral health condition. No VA electronic medical records were available for review and the applicant is not service connected. In addition, the applicant did not submit any medical documentation post-military service substantiating his assertion of anxiety and depression. e. 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 anxiety and depression 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 reports experiencing anxiety and depression during his time in service. (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-asserted anxiety and depression, during military service, he did not provide any medical documentation substantiating the 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. During deliberation, the Board noted, the applicant provided insufficient post service achievements or character letters of support that attest to his honorable conduct that might have mitigated his discharge characterization. 2. The Board found the burden of proof rest with the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to substantiate his contentions that he was discriminated against by his leadership and discharged in error. The record shows the applicant was discharged for misconduct - commission of a serious offense related to drug use 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. Based on this, the Board denied relief. 3. 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: 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 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 post-traumatic stress disorder; traumatic brain injury; 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004271 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1