IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004648 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * In-service medical documents * Post-service medical documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Character reference letters (2) 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 bipolar schizophrenia. He sought help after his service. He believes his illness was untreated, which caused his pattern of misconduct. 3. On his DD Form 149, the applicant notes other mental health as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 4 June 1981, the applicant enlisted in the Regular Army. Upon completion of training, he was awarded military occupational specialty 63B (Power Generation and Wheel Vehicle Mechanic). 5. On 5 January 1982, the applicant was reported as absent without leave (AWOL) and remained absent until he returned to military authorities that same day. 6. On 7 January 1982, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for going AWOL from on or about 4 January 1982 until on or about 5 January 1982. His punishment included 10 days confinement and forfeiture of $100.00 pay for one month. 7. Before a special court-martial on 1 February 1983, at Fort Hood, Texas, the applicant was found guilty of one specification of assault and battery. The court sentenced him to reduction to the grade of E-1, confinement at hard labor for two months, forfeiture of $150.00 pay per month for two months. The sentence was approved, and the record of trial was forwarded for appellate review. 8. Social work in-processing form dated 18 February 1983, shows that the applicant told his counselor that he previously went to a psychiatrist about his nerves. 9. On 6 April 1983, the applicant accepted NJP under Article 15 of the UCMJ, for willfully damaging a wall by putting a hole through it while horse-playing, on or about 1 April 1983. His punishment included forfeiture of $134.00 pay for one month, and 14 days extra duty and restriction. 10. Again on 6 April 1983, the applicant accepted NJP under Article 15 of the UCMJ, for failing to obey a lawful order, on or about 5 April 1983. His punishment included forfeiture of $136.00 pay for one month, and 14 days extra duty and restriction (suspended for 30 days). 11. The applicant's commander notified him on 7 April 1983, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. As the specific reasons, his commander cited the applicant’s special court-martial, three Article 15s and his unsatisfactory training evaluations. 12. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct. 13. On 8 April 1983, the applicant was confined as a result of recission of deferment of his sentence to confinement because of further acts of misconduct. 14. On 13 April 1983, the applicant acknowledged that he had been advised by counsel of the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He submitted a statement in his own behalf, and tried to explain to his commander that while at retraining, he was asked if he wanted to return to duty. HIs response was no, all he wanted to do was to get out of the Army to take care of his sick mother and to be with his girlfriend while she was having his child. He tried to make it through training, he felt that the drill sergeants disliked him, and he was afraid of them. 15. Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge on 20 April 1983, and directed issuance of an UOTHC discharge certificate. 16. The applicant was discharged on 25 April 1983. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for pattern of misconduct. His service was characterized as UOTHC. He was assigned Separation Code JKM and Reentry Code 3B. He completed 1 year, 9 months, and 5 days of net active service this period with 47 days of time lost. 17. The applicant provides the following (provided in entirety for the Board): a. VA Form 21-4138 in support of his VA disability compensation application wherein, he states that on his exit exam, he checked depression or excessive worry and nervous trouble of any sort. A report of mental status evaluation was not performed at the time, although he was supposed to have one. He knows what he did was wrong; however, he believes he was not diagnosed or treated in the Army. b. In-service medical documents that show he had a prior history of various injuries and illnesses, including depression and situational stress. Additionally, his mental status evaluation form is incomplete. c. Medical documents from South Arkansas Regional Health Center that show he was diagnosed and received treatment for paranoid schizophrenia. d. Character reference letters (two) that collectively attest to the applicant's positive character traits, his respect for others and his trustworthiness. 18. 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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he experienced mental health conditions that mitigates 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 4 June 1981; 2) On 7 January 1982, the applicant accepted non-judicial punishment (NJP) for going AWOL on 4-5 January 1982; 3) Before a special court-martial on 1 February 1983, the applicant was found guilty of one specification of assault and battery; 4) On 6 April 1983, the applicant accepted NJP for damaging a wall on 1 April 1983, and he accepted another NJP on the same day for failing to obey a lawful order on 05 April 1983; 5) The applicant was discharged on 25 April 1983, Chapter 14-12b, for pattern of misconduct. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and additional hardcopy civilian and medical treatment records provided for review were also examined. d. The applicant reported being diagnosed with “bipolar schizophrenia” after his military discharge. He asserts that he was experiencing the symptoms of this mental health condition while on active service, which mitigates his misconduct. The applicant provided evidence from his Report of Medical History dated 29 May 1981. At that time prior to his enlistment, he reported having a history or currently experiencing “nervous trouble.” Later on, 22 April 1983 prior to his discharge, he again completed a Report of Medical History and stated he was currently experiencing or had a history of depression or excessive worry and had “nervous trouble.” It was also reported by the provider the applicant had a history of depression and situational stress. The applicant also provided a blank Mental Status Exam form without a date or signature. e. A review of JLV was void of medical documentation beyond the applicant receiving assistance for homelessness, and he does not receive disability for a condition. The applicant also provided civilian documentation dated 04 April 2019 from the South Arkansas Regional Health Center sign by a physician. The applicant was diagnosed with Paranoid Schizophrenia and Cluster B Personality Disorder Traits. There was information provided on how to assist the applicant with obtaining and maintaining his psychiatric medication, but there was no discussion of the onset of his symptoms. 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. However, the applicant contends he was experiencing a mental health condition that mitigates his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 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 schizophrenia” that contributed to his misconduct. He did report experiencing mental health symptoms while on active service, and he did provide documentation that he has been diagnosed with Paranoid Schizophrenia by civilian provider in 2019. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing symptoms of “bipolar schizophrenia” that contributed to his misconduct. He did report experiencing mental health symptoms while on active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is sufficient evidence the applicant was reporting symptoms and a history of a mental health condition while on active service. There is also sufficient evidence the applicant has been diagnosed with a severe psychiatric disorder after his discharge. It is likely the applicant was experiencing early symptoms of this disorder during his brief military service. Paranoid Schizophrenia can be associated with increased erratic and avoidant behavior. The applicant not following an order, punching a hole in wall, and going AWOL are examples of these types of behavior. However, there is no nexus between the applicant’s behavior of assault and battery and paranoid schizophrenia. There was insufficient evidence the applicant did not understand the difference between right and wrong during his military service and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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 deny relief based on the applicant’s record exhibiting numerous instances of misconduct during his 1 year, 9 months, and 5 days of net active service this period with 47 days of time lost. However, upon further review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding sufficient evidence the applicant was reporting symptoms and a history of a mental health condition while on active service. It was noted by the Board there is also sufficient evidence the applicant has been diagnosed with a severe psychiatric disorder after his discharge. 2. The Board recognizes there is no nexus between the applicant’s behavior of assault and battery and paranoid schizophrenia. Additionally, there was insufficient evidence the applicant did not understand the difference between right and wrong during his military service and act in accordance with the right. However, the Board, under liberal consideration and the medical opine found sufficient evidence of in-service mitigating factors to overcome the misconduct based on the applicant experiencing early symptoms of this disorder during his brief military service. Paranoid Schizophrenia can be associated with increased erratic and avoidant behavior. The Board determined, based on the preponderance of evidence, upgrade of the applicant’s characterization of service to general, under honorable conditions is warranted and therefore relief was granted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx : xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : xx : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 25 April 1983 showing his characterization of service as general, under honorable conditions. 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 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. 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 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) 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. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, 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 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. 6. 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) AR20230004648 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1