IN THE CASE OF: BOARD DATE: 11 August 2021 DOCKET NUMBER: AR20200003933 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * amend Item 26 (Separation Code) to show his separation code as "GMB" instead of "JKM" * amend Item 27 (Reentry (RE) Code) to show his RE Code as "1" instead of "3" * amend Item 28 (Narrative Reason for Separation) to show his narrative reason for separation as "Honorable" instead of "Misconduct – Pattern of Misconduct" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 23 December 2019 FACTS: 1. The applicant did not file within the three-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 believes his DD Form 214 is incorrect, because he was housed in the Madigan Army Medical Center (MAMC) Behavioral Health Department for severe depression and aggressive suicidal thoughts. During his current treatment for a traumatic brain injury (TBI), his doctor stated his condition was likely clinical depression that should have been treated while he was in the military, because this was the first incident of depression. 3. The applicant enlisted in the Washington Army National Guard (WAARNG) on 14 July 1988. He entered initial active duty for training (IADT) on 21 June 1989, for the purpose of completing his initial entry training. His record indicates he completed initial entry training on 16 November 1989, was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator), and was released from active duty (REFRAD). 4. The applicant underwent a Regular Army enlistment examination on 31 December 1990, wherein he noted that he previously had his tonsils removed but was otherwise in good health. The examining physician noted he had mild pes planus and a pilonidal dimple and found him qualified for enlistment at the time. 5. The applicant was discharged from the ARNG on 28 January 1991. The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-26b, by reason of "Enlistment in other component." His service was characterized as honorable. 6. The applicant enlisted in the Regular Army on 29 January 1991. 7. The applicant was counseled on at least 10 occasions, for various offenses, including the following: * on 14 May 1991, for the initiation of a protective order against the applicant, for his actions on or about 7 May 1991 * on 15 May 1991, for violating a written order or regulation and being arrested at the Fort Lewis Post Exchange, carrying a concealed weapon [martial arts style knife], on 15 April 1991 * on 22 May 1991, for losing a sensitive item by leaving his bayonet unsecured inside his vehicle and not knowing where it was * on 27 June 1991, for attempting to marry a 16 year old female with a forged notarized parental consent form and invalid birthdates listed for her * on 12 August 1991, for failing all three events of his physical fitness test * on 15 August 1991, for failing to follow instructions on numerous occasions between 25 July and 4 August 1991 * on 22 August 1991, for the proper sick call procedures * on 28 August 1991, for being out of uniform, in an off post grocery store, on 27 August 1991 * on 4 September 1991, for his financial responsibilities and how to get an Army Emergency Relief (AER) Grant/Loan * on 3 October 1991, for leaving his appointed place of duty without completing his assigned task, on 2 October 1991 8. The applicant was referred to Community Mental Health Services (CMHS) on 21 August 1991. His record contains a Standard Form (SF) 513 (Clinical Record – Consultation Sheet) that shows: a. The reason for the request was: "20 year old male with history of multiple episodes of inappropriate sick call visits; inappropriate communications; multiple episodes of police visits; and suspected malingering." b. The psychiatrist’s examination concluded the following on 29 August 1991: * Axis I - Occupational Problem * Axis II - Personality disorder with passive immature traits * Axis III - Foot and Ankle pain by history * Follow up at CMHS for supportive care * No suicidal or homicidal ideations * Recommended administrative discharge * Service Member (SM) desired to discharged from the Army 9. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to obey a lawful order from his first sergeant (1SG). 10. The applicant’s service record contains a DA Form 3822-R (Report of Mental Status Evaluation) that shows he received a command-directed mental status evaluation on 29 August 1991. The examining psychiatrist noted the following on 3 September 1991: This soldier was evaluated at the request of the Commander on 29 Aug 91. This Soldier is mentally responsible for his behavior, can distinguish right from wrong, and possesses sufficient mental capacity to participate in administrative or judicial proceedings. Based on this evaluation, the diagnostic impression is that of a Personality Disorder NOS with passive and immature traits which is a type of personality disorder within the meaning of AR 40-501 [Standards of Medical Fitness] and the Diagnostic and Statistical Manual (DSM III-R). This disorder is so severe that the Soldier's ability to function effectively in a military environment is significantly impaired. Problems presented by this Soldier are not amenable to hospitalization, brief treatment, a rehabilitative transfer, disciplinary action, retraining, or a MOS reclassification. Further retention of this Soldier will likely create additional management problems for the commander. Recommend administrative separation. This Soldier is psychiatrically cleared for any administrative action deemed appropriate by command. 11. The applicant underwent a separation examination on 21 September 1991, wherein he listed various ailments on his SF 93 (Report of Medical History) and SF 600 (Health Record - Chronological Record of Medical Care) as a continuation sheet. Notably, he mentioned he had attempted suicide before active duty and during advanced individual training (AIT) [not previously mentioned to the psychiatrist]. Subsequently, the examining physician found him qualified for separation. 12. The applicant’s service record contains another DA Form 3822-R that shows he received another command-directed mental status evaluation on 22 September 1991, which refers back to his 29 August 1991 evaluation by the psychiatrist. He was again found mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative or judicial proceedings; and met the retention requirements of Army Regulation 40-501, Chapter 3. 13. The applicant service records contain an SF 558 (Emergency Care and Treatment) that shows he was seen at the MAMC Emergency Department (ED) on 6 October 1991, for a psychiatric evaluation. The form shows he was psychiatrically cleared and released to his company the same day and includes the following statement: Patient currently on restriction for various minor infractions, states he was not allowed to visit his wife’s grandmother who allegedly had a heart attack yesterday. Now he is very angry and threating to kill his first sergeant if given the opportunity. Denies suicidal thoughts. 14. The applicant’s service record contains another DA Form 3822-R, showing he received a third mental status evaluation from a different psychiatrist on 9 October 1991. This form again shows he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate in administrative or judicial proceedings. He met the retention requirements of Army Regulation 40-501, Chapter 3, and further shows the following: This Soldier has been hospitalized at MAMC on the Psychiatric Unit and is being returned to your command. Based on this evaluation, the diagnostic impression is that of a Personality Disorder within the meaning of AR 40-50, AR 635-200 [Personnel Separations – Enlisted Personnel] and the Diagnostic and Statistical Manual (DSM-III-R). This disorder is so severe that the Soldier's ability to function effectively in the military environment is significantly impaired. Problems presented by this Soldier are not amenable to hospitalization, brief treatment, a rehabilitative transfer, disciplinary action, retraining, or an MOS reclassification. Further retention of this Soldier will likely create additional management problems for the commander. Recommend an administrative separation. The Soldier is fully responsible for his own behavior. He needs follow-up at Community Mental Health Clinic until separation. 15. The applicant's commander notified the applicant on 16 October 1991 of his intent to initiate separation actions under the provisions of Army Regulation 635-200, paragraph 14-12b, and the rights available to him. The commander cited the applicant's pattern of misconduct, after formal counseling IAW AR 635-200, which clearly established that further attempts to develop him as a satisfactory Soldier were unlikely to succeed. He acknowledged receipt of the commander's notification memorandum the same day. 16. The applicant consulted with counsel on 21 October 1991 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He requested to appear before an administrative board if his discharge [characterization] was less favorable than general. He elected to submit a statement in his own behalf; however, no statement is available for review. 17. The applicant's commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of his patterns of misconduct. He cited the aforementioned reasons for his recommendation. 18. The applicant's intermediate commander recommended approval of the recommended separation on 23 October 1991, under the provisions of Army Regulation 635-200, paragraph 14-12b, for his patterns of misconduct. He also recommended a waiver of the rehabilitation requirements; a general discharge; and noted the applicant was not entitled to have his case considered by an administrative separation board. 19. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge, and a waiver of rehabilitation requirements on 25 October 1991, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct. He directed that the applicant be issued a DD Form 257A (General Discharge Certificate), and a separation code of "JKM." 20. The applicant was discharged on 4 November 1991, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct," with an under honorable conditions (general) characterization of service. The DD Form 214 he was issued shows he was credited with completing nine months and six days of net active service. Additionally, it shows the following entries in: * Item 26 (Separation Code) – "JKM" * Item 27 (Reentry Code) – "3" * Item 28 (Narrative Reason for Separation) – "Misconduct – Pattern of Misconduct" 21. The applicant contends he was housed in the MAMC Behavioral Health Department for severe depression and aggressive suicidal thoughts. However, on 6 October 1991, before being discharged from the MAMC Psychiatric Unit and returned to his unit, he was evaluated in the MAMC ED where he denied suicidal ideations. He was being evaluated for communicating threats towards his 1SG, not depression or suicidal thoughts. He received at least four separate mental status evaluations and denied suicidal ideations each time. He only mentioned attempting suicide during his separation examination and at that time, he didn't mention depression. 22. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 23. MEDICAL REVIEW:. a. Applicant is applying to the ABCMR requesting that his Under Honorable Conditions (General) discharge be upgraded to an Honorable discharge due to depression. The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA electronic medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. Following prior service in the Army National Guard, applicant enlisted in the Regular Army on 29 January 1991. He was discharged on 4 November 1991 under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "Misconduct – Patterns of Misconduct," with an Under Honorable Conditions (General) characterization of service. Applicant was recommended for separation due to establishing a pattern of misconduct even after formal counseling. He was counseled for various offenses, including: * on 14 May 1991, for the initiation of a protective order against the applicant, for his actions on or about 7 May 1991 * on 15 May 1991, for violating a written order or regulation and being arrested at the Fort Lewis Post Exchange, carrying a concealed weapon [martial arts style knife], on 15 April 1991 * on 22 May 1991, for losing a sensitive item by leaving his bayonet unsecured inside his vehicle and not knowing where it was * on 27 June 1991, for attempting to marry a 16 year old female with a forged notarized parental consent form and invalid birthdates listed for her * on 12 August 1991, for failing all three events of his physical fitness test * on 15 August 1991, for failing to follow instructions on numerous occasions between 25 July and 4 August 1991 * on 22 August 1991, for the proper sick call procedures * on 28 August 1991, for being out of uniform, in an off post grocery store, on 27 August 1991 * on 4 September 1991, for his financial responsibilities and how to get an Army Emergency Relief (AER) Grant/Loan * on 3 October 1991, for leaving his appointed place of duty without completing his assigned task, on 2 October 1991 c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. A command referred mental health evaluation dated 29 August 1991 reported diagnoses of Occupational Problem and Personality Disorder, Not Otherwise Specified ‘with passive and immature traits”. The evaluator recommended an administrative discharge and psychiatrically cleared him for any administrative action. A subsequent chapter mental status evaluation by a different evaluator on 22 September 1991 states, “normal mental status, no personality disorder”. Applicant was psychiatrically hospitalized on 6 October 1991 for homicidal ideation towards his first sergeant due to being upset regarding restrictions resulting from recent infractions. A third mental status evaluation dated 9 October 1991 upheld the initial clinical impression that applicant had a personality disorder. The author of this third exam also recommended an administrative discharge. d. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. e. After review of all available information at this time, applicant’s only in-service behavioral health diagnosis was a Personality Disorder, Not Otherwise Specified, which is not a mitigating behavioral health condition. Also, there is no evidence that any behavioral health conditions have been diagnosed post-service. While Liberal Consideration guidance was considered, it is the opinion of the Agency psychologist that applicant did not have a mitigating behavioral health condition at the time of service. Therefore, a discharge upgrade is not recommended. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The only in-service behavioral health diagnosis was a Personality Disorder, Not Otherwise Specified, which is not a mitigating behavioral health condition. Also, there is no evidence that any behavioral health conditions have been diagnosed post-service. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Board members noted that his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory and did not rise to the level required for an honorable characterization. 3. His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of AR 635-200 due to Misconduct – Patterns of Misconduct. Absent the conviction for counterfeiting, there was no fundamental reason to process him for discharge. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate SPD code associated with this discharge is "JKM" which are correctly shown on his DD Form 214. Such Separation Code carries an RE Code of 3 which is also correctly shown on his DD Form 214. For that reason, the Board voted to deny relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 601–210 (Active and Reserve Components Enlistment Program) provides that an RE code is not upgraded unless it was administratively incorrect when originally issued. a. RE code "1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. b. RE code "3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. The regulation in effect at the time of his discharge stated the separation code "JKM" was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, due to misconduct – pattern of misconduct. 4. 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 established policy and prescribed procedures for separating members for misconduct. Specific categories included 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter; however, the separation authority could direct a general discharge if merited by the Soldier’s overall record. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 6. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 7. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 (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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 8. 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) AR20200003933 9 RMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1