ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 February 2019 DOCKET NUMBER: AR20160015701 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to honorable * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 12-page psychological evaluation, dated 8 August 2016 * 2 third-party character reference letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 was threatened and physically attacked and harmed by other Soldiers. He contends he was a victim of prejudice by superior officers. 3. The applicant enlisted in the Regular Army on 29 May 1987 in the rank of private (PVT)/E-2. 4. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 26 October 1987 for being absent without leave (AWOL) from 1 September to 11 September 1987 and from 16 September to 21 September 1987. Part of the punishment consisted of reduction to the rank of PVT/E-1. 5. A DA Form 4187 (Personnel Action) shows the applicant departed AWOL on 17 November 1987. A second DA Form 4187 shows he was apprehended by civilian authorities and returned to military control on 10 February 1989. A DA Form 3975 (Military Police Report) and an FO Form 4-479 (AWOL Deserter Data Sheet) show the applicant was apprehended by civilian authorities for desertion, possession of a controlled substance, and disorderly conduct. 6. On 27 February 1989, court-martial charges were preferred against the applicant based on his AWOL offense. 7. On 27 February 1989, the applicant consulted with legal counsel 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. a. The applicant acknowledged in his request he understood the elements of the offenses charged and that he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged. He was advised of: * the nature of his rights under the UCMJ * the elements of the offenses with which he was charged * any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * the possible defenses which appear to be available b. The applicant further acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge. 8. The separation authority approved the applicant's request for discharge on 2 May 1989 and directed the issuance of an under other than honorable conditions discharge. 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. It further shows his service was characterized as under other than honorable conditions. 10. There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 11. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's (ARBA) Psychiatrist. The medical advisory opinion states: a. The applicant is requesting discharge upgrade contending that his misconduct as due to post-traumatic stress disorder (PTSD) he developed as a result of the racial prejudice and threats of physical harm he endured while serving in the military. b. Information reviewed included the applicant's ABCMR application, applicant- provided medical documentation, his military medical records and the VA electronic medical record (JLV). The military electronic medical record (AHLTA) was not reviewed as this system was not in use during the applicant's time in service. c. The applicant-provided medical documentation consists of a psychological evaluation, dated 8 August 2016, authored by a psychologist (Dr. H). This evaluation indicates the following: * the applicant was initially interviewed by Dr. H on 19 February 2016 * the applicant was diagnosed with PTSD, major depressive disorder, recurrent, severe, and insomnia disorder * Dr. H felt the applicant's PTSD was due to psychological abuse he experienced while in the Army * the applicant reported he was subjected to verbal abuse and racial prejudice by his fellow soldiers and his superior commissioned officers while on active duty. * the applicant reported threats of physical abuse and fearing for his safety on a daily basis * Dr. Hayes writes: " ... In light of the foregoing, it is my professional opinion that [the applicant's] currently displayed symptoms of PTSD are at least as likely as not caused by his known stressors in the military." d. Review of his military personnel records indicate the following: * a psychological profile of S-1 (no psychological impairment) * an FO Form 4-479 (AWOL Deserter Datasheet) which states the applicant was apprehended by Santa Clara County Jail for 1) Desertion 2) Possession of a Controlled Substance 3) Disorderly Conduct." * In the upper left hand corner margin of the FO Form 4-479, the word "Negro" is handwritten in capital letters and underlined e. Review of the applicant's military medical records indicate the following: * he was admitted to the hospital with the diagnoses: alcoholism, character disorder-manipulative state * his discharge diagnoses were: alcoholism, character disorder manipulative state AWOL on 23 Oct 1987; failed first entrance into Drug and Alcohol Program f. There is no indication in the applicant's military records that he failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). g. In summary, the applicant contends that, because of his race, he was verbally abused and threatened with physical harm while in the military and this led to his subsequent development of PTSD. After reviewing the available documentation, the ARBA Psychiatrist finds the applicant's contention is credible. h. Review of his medical records indicate the applicant was hospitalized twice for gastrointestinal issues which were felt to be emotional in nature and caused by the stress the applicant was experiencing in his unit. i. Review of his military records indicates the presence of a document titled "AWOL Deserter Data Sheet" on which the word "Negro" is handwritten in the upper left hand corner margin in capital letters and underlined. (Why this word is written on this form in the margin is not clear but its existence seems to suggest that the person filling out the form felt that the applicant's race played a factor in his AWOL.) j. Review of the applicant's Psychological Evaluation indicates he has been diagnosed by a licensed clinical psychologist with PTSD due to racially motivated verbal abuse and threats of physical harm. k. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military medical records do support the existence of PTSD at the time of discharge. His diagnosis of PTSD is a mitigating factor in the misconduct that resulted in his discharge from the military. 12. The medical advisory opinion was provided to the applicant to give him the opportunity to provide additional evidence or a rebuttal. He did not respond. BOARD DISCUSSION: JUSTIFICATION: Based upon a review of the totality of the circumstances, the Board determined a personal appearance was not required to grant full relief. Based upon a review of the medical advisory and the statements of the applicant, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show the character of his 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases, this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct that served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 4. In view of the foregoing, 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. 5. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 6. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 7. 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; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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. 9. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160015701 2 1