IN THE CASE OF: BOARD DATE: 3 Janaury 2024 DOCKET NUMBER: AR20230005984 APPLICANT REQUESTS: reconsideration of his earlier request to upgrade 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). 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 AR20100015329 on 30 November 2010. 2. The applicant states because of his issue when discharged, he is requesting an upgrade. [The applicant marked Other Mental Health on his DD Form 293] 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 24 June 1980. He held military occupational specialty 94B, Food Service Specialist. b. On 11 December 1980, he received nonjudicial punishment for failing to be at his appointed place of duty, to wit: the dining facility. His punishment consisted of 7 days correctional custody and forfeiture of $100.00 pay per month for one month. c. His record contains a notification of recommendation for administrative elimination, dated 26 February 1981 which shows: * the SM (service member) is presently pending court-martial or is the subject of a recommendation for administrative elimination from the United States Army under the provisions of Chapter 5, Army Regulation (AR) 635-200 (Expeditious Discharge Program) * request you conduct a preprocessing/screening of subject individual’s personnel records to ensure that they are complete and correct in the event an administrative discharge is approved by competent authority d. The facts and the circumstances surrounding the applicant's discharge are not contained in the available records. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 April 1981, under the provisions of chapter 5-31h (2) of AR 635-200, by reason of failure to maintain acceptable standards for retention with an under honorable conditions characterization of service, Separation Code JGH and Reentry Code 3. He completed 9 months, and 22 days of service. He was authorized the Marksman Marksmanship Qualification Badge with Rifle Bar. e. In November 2010, the ABCMR reviewed his discharge, but found the evidence of record did not support the applicant’s contention. Accordingly, the type of discharge directed, and the reasons therefore were appropriate considering all of the available facts of the case. 4. By regulation, Soldiers are subject to separation under the provisions of chapter 5 (Expeditious Discharge Program). This program provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army may be separated when they have failed to respond to counseling. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: a. Background: The applicant is requesting reconsideration of his earlier request to upgrade his under honorable conditions (General) discharge to honorable. The applicant asserted other mental health as a mitigating factor in his misconduct and request for upgrade. 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 Regular Army on 24 June 1980. * On 11 December 1980, he received nonjudicial punishment for failing to be at his appointed place of duty, to wit: the dining facility. * His record contains a notification of recommendation for administrative elimination, dated 26 February 1981 which shows the applicant was the subject of a recommendation for administrative elimination from the United States Army under the provisions of Chapter 5, AR 635-200 (Expeditious Discharge Program). * The facts and the circumstances surrounding the applicant's discharge are not contained in the available records. * His DD Form 214 shows that he was discharge on 15 April 1981, in accordance with AR 635-200, chapter 5-31h (2), by reason of failure to maintain acceptable standards for retention, with an under honorable conditions (general) discharge. * In November 2010 the ABCMR denied his request for upgrade. 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, his ABCMR Record of Proceedings (ROP), his DD Form 214, and some of his service and separation records (full facts and circumstances surrounding his discharge are not contained in the available records). 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 asserted that because of his “issue when discharged,” he is requesting an upgrade (applicant indicated “other mental health” on the application). In his previous application to the board in 2010, he asserted that he had been discharged due to a mental disorder he had previously discussed with a chaplain and a medical doctor at Fort Hood, TX. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents, nor his service treatment records (STR) were available for review. No other records were provided to substantiate his assertion. f. Per the applicant’s VA EHR, he is not service connected. However, he has had significant engagement in healthcare through the VA and has engaged in mental health care there since 2002. He has been diagnosed with alcohol dependence, cocaine dependence, psychotic disorder – not otherwise specified (NOS), psychosis NOS, depression NOS, and major depressive disorder (MDD), as well as psychosocial concerns such as inadequate housing, homeless, and economic problems. He has engaged in substance use treatment, therapy, intensive outpatient programing, case management, medication management, and housing support/HUD VASH. During his initial psychological assessment on 12 November 2002, he reported no history of mental health treatment. During an intake on 23 October 2007, he noted experiencing anxiety during his time in the service and seeing a chaplain, then a mental health professional. He also noted that he believes he’s been depressed “at least since 1981 when he was discharged.” Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, with his records indicating anxiety state (2011) and self-report of PTSD (2011). g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service. If a mitigating condition were present, this Agency Behavioral Health Advisor would not be able to provide an opine regarding an upgrade without documentation of the specific circumstance/behaviors or misconduct that led to the characterization of his discharge. 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 asserts other mental health. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts a mental health issue was presenting during his time in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? No, though this is opine is given with caution due to incomplete separation records. The applicant asserted other mental health mitigated his discharge, though did not explain further in his application. His EHR reflects that he has reported experiencing anxiety during his time in the service. However, outside of self-report, there is no evidence of any mental health treatment nor diagnosis during his time in service. His provided medical records reflect that he did not first engage in mental healthcare until 2002, approximately 21 years after his discharge. In addition, the applicant is not service connected. Of note, failure to report is an avoidance behavior consistent with the self- reported anxiety. However, it is unclear if there was other misconduct given his full separation record is not available for review. 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 concurred with the advising official finding insufficient evidence to support the applicant had a condition or experience at the time of service. The Board noted the opine finding no evidence of any mental health treatment nor diagnosis during his time in service. Based on the absence of separation records, the Board determined there is insufficient evidence of in-service mitigation to overcome the misconduct. 2. The applicant provided no post service achievements or character letters of support for the Board to weigh as clemency. The Board noted, the applicant was discharged by reason of failure to maintain acceptable standards for retention 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. 3. This Board is not an investigative body. The Board agreed the burden of proof rest on the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of an upgrade due to medical issues. 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 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 AR20100015329 on 30 November 2010. 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. By regulation, Soldiers are subject to separation under the provisions of paragraph 5-31h (2) (Expeditious Discharge Program). This program provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army may be separated when they have failed to respond to counseling. a. An honorable separation is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. When a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. 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. 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 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; TBI; sexual assault; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 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. 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. 5. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005984 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1