IN THE CASE OF: BOARD DATE: 13 January 2022 DOCKET NUMBER: AR20210008763 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 10 February 2021, with personal statement * college transcript, dated 25 August 2017 * Keller Graduate School of Management, DeVry University, Master of Public Administration Degree, dated 25 April 2020 * Department of Veterans Affairs (VA) letter of benefits, dated 11 January 2021 * Internal Revenue Service (IRS) Form 13661 (Reasonable Accommodation Request), dated 23 January 2021 * VA letter of treatment, dated 28 January 2021 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, in effect, he is requesting a change in his discharge characterization because it is hindering a lot of job opportunities he is qualified for. He believes it was the lowest part of his life; he was dealing with an undiagnosed mental health issue. Since he has been diagnosed and treated, he has control of his life. He is a Department of Treasury employee with plans of advancing in his career. He believes this change will allow him to close that chapter and achieve more of his life goals. 3. In a separate, self-authored statement, the applicant contends: a. He would like a change in the character of his discharge, due to the fact that it is hindering his progression in life. He received this discharge at a time in his life when he was at his lowest, and felt as if the world was on his shoulders. He was also dealing with a mental health condition that he was ashamed to admit to receive proper treatment for everyday living. Since tackling depression, anxiety and panic disorder, he’s been able to obtain his master’s degree and hold a position as a contact representative at the IRS. b. There are many opportunities he has been overlooked and underrated for because of this misfortune. He truly believes his mental illness played a major role in the decisions he made. He believes if he had received the proper treatment, he would have been able to make the right decisions. Please allow him to close this dark chapter in his life. Please do not let a mistake that he takes full accountability for block his path for greatness that he is destined for. c. Since his discharge from the Army, he has conquered all of his battles that he previously had. Please approve his application so he can be the individual that he has worked so hard to be since his downfall. He really needs this to move on. 4. On his DD Form 293, the applicant notes "Other Mental Health" issues are related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 5. The applicant enlisted in the Regular Army on 16 September 2007. 6. The applicant participated in a unit urinalysis on 14 April 2008, wherein he provided a urine sample that tested positive for tetrahydrocannabinol (THC). 7. The applicant accepted non-judicial punishment on 9 May 2008, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, between on or about 15 March 2008 and 14 April 2008. 8. The applicant's record is void of documentation that shows he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). 9. The applicant was formally counseled on four separate occasions between 2 September 2008 and 11 September 2008, for reasons including but not limited to failure to report to appointed place of duty and being absent from his appointed place of duty. 10. The applicant records contain two DA Forms 4187 (Personnel Action) that show he was reported by his unit as absent without leave (AWOL) from on or about 12 September 2008 through on or about 1 October 2008. 11. The applicant underwent a mental status evaluation on 6 October 2008. The relevant MEDCOM Form 699-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determined he had the mental capacity to understand and participate in any administrative proceedings and he was psychiatrically cleared for any administrative action deemed appropriate by his Command. 12. The applicant's immediate commander notified the applicant on 27 October 2008 that he had initiated actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct – commission of a serious offense. The applicant acknowledged receipt on the same date. 13. The applicant consulted with counsel on 28 October 2008 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He elected to consult with counsel and to be represented by military counsel and or civilian counsel. He elected not to provide a statement in his own behalf. 14. The applicant's commander formally recommended the applicant's separation from service on 29 October 2008, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct – commission of a serious offense. 15. The separation authority approved the recommended discharge on 29 October 2008 and directed the issuance of a DD Form 257A (General Discharge Certificate). 16. The applicant was discharged on 5 November 2008. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse). His service was characterized as under honorable conditions (general). 17. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his request on 13 February 2019, determined he was properly and equitably discharged, and denied his petition for relief. However, the board found that the applicant’s DD Form 214 contained erroneous entries, and directed the following administrative corrections and reissued the applicant’s DD Form 214, as approved by the separation authority: * Item 25 (Separation Authority), change separation authority to Army Regulation 635-200, paragraph 14-12c * Item 26 (Separation Code), change separation code to JKQ * Item 27 (Reentry (RE) Code), change RE code to 3 * Item 28 (Narrative Reason for Discharge), change narrative reason for separation to Misconduct (Serious Offense) 18. The applicant provides his college transcripts; Master of Public Administration Degree Certificate; VA summary of benefits letter; and Reasonable Accommodation Request, which shows a diagnosis of generalized anxiety disorder, panic disorder and major depressive disorder, recurrent, severe. 19. The applicant provides a letter from a VA Medical Center, dated 28 January 2021, wherein the psychiatrist noted the applicant has been under psychiatric care since February 2019. He is enrolled in mental health care that includes medication management. The applicant is diagnosed with generalized anxiety disorder, major depressive disorder, and insomnia. 20. 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 post-traumatic stress disorder (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. 21. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes the application and supporting documents, the applicant's service record, the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS), and the VA's electronic medical record (Joint Legacy Viewer (JLV)). a. The applicant provides a letter from a VA Medical Center, dated 28 January 2021, wherein the psychiatrist noted the applicant has been under psychiatric care since February 2019. He is enrolled in mental health care that includes medication management. The applicant is diagnosed with generalized anxiety disorder, major depressive disorder, and insomnia. b. AHLTA contains in-service BH diagnoses of Adjustment Disorder, and Cannabis Intoxication. c. AHLTA records show the applicant met with Army Substance Abuse Program (ASAP) providers on 2 June 2008 for a triage appointment and then on 9 and 16 June 2008 for group counseling. ASAP at the time kept local detailed records, as such there is no detail in the electronic medical record. d. JLV contains an additional post-service BH diagnosis of Generalized Anxiety Disorder. The applicant is 100% service connected, 70% for Major Depressive Disorder. e. After reviewing the available information, it is the opinion of the ARBA BH Advisor that the applicant has a mitigating diagnosis of Major Depression and Generalized Anxiety Disorder. The applicant met retention standards at the time of discharge. The applicant has a service connection of 100% (70% for Major Depression). Major Depression and Generalized Anxiety Disorder are mitigating factors for his misconduct as there is a nexus between these behaviors and his BH diagnoses as they are part of the sequela of these conditions. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding his BH diagnoses and the review and conclusions of the ARBA BH Advisor. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by his BH diagnoses. The Board also noted the applicant's post-service accomplishments as mitigating factors in this case. Based on a preponderance of evidence, the Board determined the applicant's character of service should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 his DD Form 214 to show his character of service as honorable. 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 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. Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 3. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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 under other than honorable conditions (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. 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) AR20210008763 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1