IN THE CASE OF: BOARD DATE: 29 September 2021 DOCKET NUMBER: AR20210009540 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Dockets Number AC93-06947 and AC93-06947A, on 4 October 1995 and 26 November 1997, respectively. Through counsel, the applicant requests: a. His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, due to physical disability; b. Restoration of his rank/grade to private (PV2)/E-2; c. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a different separation code, a different reentry code, and his narrative reason for separation as "For the Convenience of the Government" or "Secretarial Authority"; and d. The issuance of a DD Form 256 (Honorable Discharge Certificate). 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 12 December 2020 * Legal Brief, undated * Exhibit A - DD Form 214, for the period ending 23 August 1985, with medical documents, dated between 6 July 1983 and 12 April 1985 (30 pages) * Exhibit B - Separation Documents (22 pages) * Exhibit C - Inpatient Treatment Record Cover Sheet (8 pages) * Exhibit D - Department of Veterans Affairs (VA) Board of Veteran’s Appeals, Docket Number 90-49 387, dated 30 July 2003 (28 pages) * Exhibit E - VA Decision Review, dated 18 February 2004 (3 pages) * Exhibit F - Family Physician and Professor Letter, dated 7 November 2017 * Exhibit G - Licensed Psychologist Evaluation, dated 8 June 2020 (33 pages) * Exhibit H - VA Board of Appeals, Docket Number 14-17 613, dated 27 October 2020 (6 pages) * Exhibit I - U.S. Marine Corps Case Review (13 pages) * Exhibit J - Schizophrenia Bulletin (10 pages) * Exhibit K - Miscellaneous Documents (8 pages) * Exhibit L -VA Supplemental Statement of the Case, dated 30 October 1998 * Exhibit M - ABCMR Decision letter with associated documents and letters * Counsel Letter, dated 24 July 2021, with new evidence pertaining to Federal Marijuana Protections and Other Drug Policy Provisions (10 pages) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Dockets Number AC93-06947 and AC93-06947A, on 4 October 1995 and 26 November 1997, respectively. 2. The applicant states his discharge should be upgraded and referred to the Disability Evaluation System (DES) for determination based on schizophrenia and traumatic brain injury (TBI). 3. Counsel states, per the Hagel memorandum, a perfect record is not necessary for an honorable discharge. It can be argued that today the applicant would not have been court-martialed for cannabis use and sale, even with two prior Article 15s for minor offenses. Even still, being processed for administrative discharge due to misconduct, he would be eligible for DES referral. Under today’s more enlightened standards and science, the military would consider the significant mitigating circumstances of TBI and schizophrenia. The TBI concussive cognitive symptoms, the physical chronic pains, and distressing schizophrenic prodrome constituted substantial contributing cause of the drug offense. 4. The applicant enlisted in the Regular Army on 30 August 1983. 5. A DA Form 5112-R (Checklist for Pretrial Confinement) shows the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 23 May 1984, for failure to repair * on 19 September 1984, for failure to repair * on 31 October 1984, for failure to obey a lawful order * on 2 November 1984, for two charges of failure to obey a lawful order 6. Notwithstanding the applicant’s NJP imposed on 23 May 1984, he was advanced from PV2 to private first class (PFC) on 1 June 1984. 7. Court-martial charges were preferred against the applicant on 25 March 1985, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with two specifications of distribution of marijuana, on or about 22 December 1984 and on or about 8 February 1985. 8. The applicant was admitted to the hospital at Fort Gordon, GA, on 12 April 1985 with the diagnosis of "schizophreniform disorder, rule out psychotic depression." This was his first acknowledged psychiatric hospitalization. The applicant noted the onset of his problems as 1 November 1984, after his involvement in a motor vehicle accident with no reported loss of consciousness. After initiation of the applicant’s antipsychotic therapy, he received day passes from the hospital ward for which he returned without complications. However, on 9 May 1985, he was noted to be absent from the ward. 9. Court-martial charges were preferred against the applicant on 15 April 1985, for violations of the UCMJ. His DD Form 458 shows an additional charge for possession of marijuana, on or about 8 February 1985, was referred for trial by general court-martial. 10. Court-martial charges were preferred against the applicant on 29 May 1985, for violations of the UCMJ. His DD Form 458 shows he was charged with being absent without leave (AWOL) from on or about 9 May 1985 through on or about 27 May 1985. 11. A sanity board composed of three psychiatrists was convened on 26 June 1985 to determine the mental capacity and responsibility of the applicant. The Board found that at the time of the alleged criminal conduct the applicant did not have a mental disease or defect. He possessed sufficient mental capacity to understand the nature of the proceedings and to cooperate intelligently in his defense. At the time of his charge for AWOL (May 1985), he lacked the substantial capacity to conform his conduct to the requirements of the law. 12. The applicant’s defense counsel received the results of the sanity board hearing on 9 July 1985, and requested a delay of the trial by general court-martial. 13. The applicant consulted with counsel on 2 August 1985 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. 14. The separation authority approved the request for discharge on 19 August 1985, in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 15. The applicant was discharged on 23 August 1985. His DD Form 214 contains the following entries in: * item 24 (Character of Service) – Under Other than Honorable Conditions * item 25 (Separation Authority) – AR [Army Regulation] 635-200 chap 10 * item 26 (Separation Code) – KFS * item 27 (Reentry Code) – 3&3B * item 28 (Narrative Reason for Separation) – For the good of the service-in lieu of court-martial 16. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 17. The Army Discharge Review Board reviewed the applicant's discharge and determined it was both proper and equitable. Accordingly, his request for an upgrade was denied on 1 February 1991. 18. The applicant's previous ABCMR case (AC93-06947) notes an advisory opinion was obtained from the Office of the Surgeon General (OTSG) on 27 March 1995. The advisory official noted and opined, in pertinent part: a. The applicant’s entire record is permeated with examples of symptoms occurring at times or in patterns which maximized secondary gain. Specifically, complaints of low back pain and neck pain without objective finding while on active duty were a source of controlled substances (Tylenol #3, Dalman), change in duties (because of profiles limiting physical activity), and possible financial gain through litigation. The potential for financial gain continued after he was separated from the Army as he is still seeking compensation from the Army, and the VA. Mental illness/psychosis provided for the possibility of avoiding prosecution while on active duty and financial gain (social security, VA, Army). b. Substance abuse was definitely present prior to the applicant’s development of "psychiatric" symptoms in April 1985. It is also important to note that six months after separation he was hospitalized with psychotic symptoms (hallucinations and delusions, mainly grandiose with some paranoia). Schizophrenia, paranoid type was the first diagnosis listed on the narrative summary (civilian hospital) secondary to his report that he was given the diagnosis in the military. However, a substance-induced psychosis was thought very likely, as a family member noted the applicant had used phencyclidine (PCP) prior to the onset of symptoms. In that report he was noted to have a "long history of poly-substance abuse" which implies that the substance abuse began prior to or during his time on active duty. A later narrative summary also notes abuse of cocaine. c. Although substance abuse and litigiousness are often apparent in individuals with schizophrenia, paranoid type, other elements of the data fit more with personality disorders and/or malingering. The applicant’s behavior since leaving the Army is consistent with someone with a personality disorder and substance abuse. This supports the type of discharge he received, as personality disorders contain long standing maladaptive patterns of behavior. d. Available data strongly suggests that the applicant was medically fit in accordance with Army Regulation 40-501 (Standards of Medical Fitness) at the time of his discharge. There is no evidence that mental disorder caused him to have diminished responsibility for the criminal actions which led to his other than honorable discharge. Therefore, it was recommended that his request be disapproved. 19. The applicant provides: a. A letter from a family physician and professor, dated 7 November 2017, which states the applicant suffers from significant issues including post-traumatic stress disorder (PTSD), paranoid schizophrenia, cognitive difficulties, and pain syndromes, which could reasonably be caused by the trauma he suffered in the military. b. A medical opinion from a licensed psychologist, dated 8 June 2020, wherein the evaluating official opined it was more likely than not that the applicant met the criteria for mild TBI secondary to the vehicular accident in 1984. He further opined it was at least as likely as not that the applicant’s mild TBI caused or resulted in his schizophrenia. c. A letter through counsel, dated 24 July 2021, which states the U.S. Congress is on the verge of legalizing and allowing research for medical marijuana and decriminalizing small possession. It further states, the applicant’s attempted sale of marijuana was for personal use for his worsening symptoms of prodrome schizophrenia, eventually in April 1985 diagnosed as full onset psychosis. The attempted sale was simply to pay for additional marijuana to deal with his developing schizophrenia. 20. The Board should consider the applicant's statement in accordance with the published equity, injustice, or 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 existed during or was aggravated by military service, or that the condition or experience may excuse or mitigate the discharge. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. Through counsel, the applicant is applying to the ABCMR requesting an upgrade of his 21 May 1985 discharge characterized as under other than honorable conditions, and a referral to the Disability Evaluation System. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 30 August 1983 and was discharged under other than honorable conditions on 23 August 1985 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (15 April 1985): Discharge for the Good of the Service. c. Because of the period of service under consideration, there are no encounters in AHLTA. d. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show the applicant to have been in good health, without any significant medical history or conditions. e. The applicant was a passenger in a two vehicle accident on 2 November 1984. Following evaluation in the emergency room, to include a consult to orthopedics, the applicant was diagnosed with a left ankle sprain and a congenital abnormality of the first cervical vertebrae, and released. f. On 21 February 1985, the applicant was referred to psychiatry for a 6-8 week history of decrease appetite, decreased energy, and decreased concertation. He was seen the same day and diagnosed with adjustment disorder with depressed mood and referred to community mental health. g. On a Charge Sheet (DA Form 458) dated 25 March 1985, the applicant was charged with two counts of marijuana distribution. A Charge Sheet dated 15 April 1985 shows he was charged with marijuana possession. h. On 12 April 1985, the applicant was admitted to the hospital with the diagnosis of schizophreniform disorder with a note stating “Probable Chapter 3 MEB board.” He went AWOL from the hospital on 9 May 1985. The discharge summary notes he was doing fairly well at the time of his “elopement”: “At the time of the patient's departure, he was fully oriented to time, place, person, and situation, and no gross memory deficits were observed. His mood was described as ‘fine’, his affect shallow, sometimes inappropriate, with a fair range of expression. The patient was mostly free of perceptual alteration at the time of his elopement. Thought processes were mostly coherent, goal directed, with significant improvement and less evidence of loosening of associations.” i. A third DA 458 dated 29 May 1985 shows the applicant was charged with absence without leave (AWOL) from 9-27 May 1985. j. A sanity board convened on 27 June 1985 found the applicant to have the following diagnoses: (1) Schizophreniform Disorder, treated improved. (with onset after alleged criminal conduct) (2) Alcohol Abuse, episodic, in remission. (3) Cannabis Abuse, episodic, in remission. (4) Mixed Personality Disorder with Narcissistic and Paranoid features. (5) Back pain, continuous, following auto accident, without objective findings, treated, minimally improved. k. In relation to the charges of marijuana possession and distribution, they found he did not have a mental disease at the time of the criminal conduct and had the “capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” They made the opposite findings in relation to his period of AWOL. l. On 2 August 1985, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635. The commanding general of the U.S. Army Signal Center and Fort Gordon approved his discharge with an under other than honorable characterization of service. m. While it is likely the applicant had a mental health condition for which he could have been referred to the Physical Disability Evaluation System (PDES), his distribution of marijuana made his entrance into the system dependent on his general court martial convening authority. n. Paragraph 4-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 August 1982) states: 4-1. Members charged with an offense: The case of a member charged with an offense, or is under investigation for an offense which could result in dismissal or punitive discharge, may not be referred for disability processing unless: a. The investigation ends without charges. b. The-officer exercising proper court martial jurisdiction dismisses the charge. c. The officer exercising proper court martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. o. There is no evidence any of these criteria were met. p. A 7 November 2017 memorandum from a treating physician and addressed to the ABCMR states: “He how suffers from many significant issues including PTSD, paranoid schizophrenia, cognitive difficulties, and pain syndromes, which could reasonably be caused by the trauma he suffered in the military.” q. Review of his records in JLV shows he has been awarded multiple VA service connected disability ratings, including a 100% disability rating for paranoid schizophrenia. However, the DES compensates an individual only for condition(s) which have been determined to disqualify him or her from further military service, a process for which he was not eligible. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. r. It is the opinion of the Agency medical advisor that the applicant had a behavioral health condition which partially mitigates his UCMJ violations. As paranoid schizophrenia is associated with erratic and avoidant behavior as well as self- medication, it mitigates is period of AWOL and charge of marijuana possession. However, it is neither associated with nor can it mitigate the two charges of marijuana distribution. s. It is the opinion of the Agency medical advisor that neither an upgrade of his discharge nor a referral to the DES is warranted. 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. Board members noted that the applicant had a behavioral health condition which partially mitigates his UCMJ violations As paranoid schizophrenia is associated with erratic and avoidant behavior as well as self-medication, it mitigates is period of AWOL and charge of marijuana possession. However, it is neither associated with nor can it mitigate the two charges of marijuana distribution. The applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. 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. For that reason, the Board voted to deny the upgrade of the discharge. 2. Board members further noted that available data strongly suggests that the applicant was medically fit in accordance with AR 40-501 (Standards of Medical Fitness) at the time of his separation from the Army. There is no evidence that mental disorder caused him to have diminished responsibility for the criminal actions which led to his other than honorable discharge. For that reason, Board members voted to deny any relief related to disability separation. Additionally, because he was pending a punitive discharge, he was ineligible to enter the disability evaluation system. 3. Board members further noted that by voluntarily requested discharge in lieu of trial by court-martial, and the separation authority approved the UOTHC discharge, he ordered the applicant reduced to the lowest enlisted grade. There is no evidence the applicant was promoted back to PV2 after the separation authority approved his discharge. 4. The evidence of record further confirms his RE code was assigned based on his separation under the provisions of chapter 10 of AR 635-200 for the good of the service in lieu of trial by court-martial. The Separation Code associated with this type of discharge is KFS which - at the time - had corresponding RE Code of 3 (3B for lost time). Because he received the correct separation and RE codes, Board members voted to deny this portion of his request. 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 to amend the decision of the ABCMR set forth in Docket Number AC93- 06947 and AC93-06947A, on 4 October 1995 and 26 November 1997, respectively. 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 (USC), Section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. 2. Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, Chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b (1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b (2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 4. 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 provides that 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 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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, 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) AR20210009540 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1