IN THE CASE OF: BOARD DATE: 22 May 2018 DOCKET NUMBER: AR20160007613 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 May 2018 DOCKET NUMBER: AR20160007613 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge. 2. The applicant states he needs medical help for his illness. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical problem list CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army for a 3-year term on 29 August 1980. He held military occupational specialty 94B (Food Service Specialist). He also completed the Basic Airborne Course. 3. His service records show he was assigned to the 2nd Battalion, 504th Infantry Regiment, Fort Bragg, NC. 4. On 16 April 1981, he was reported in an absent without leave (AWOL) status. He returned to military control on 12 May 1981. 5. On 12 May 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 16 April to 12 May 1981. 6. On 18 June 1981, he again departed his Fort Bragg unit in an AWOL status and on 18 July 1981, he was dropped from the Army rolls as a deserter. He returned to military control on 20 July 1981. 7. On 23 July 1981, his command preferred court-martial charges against him for one specification of being AWOL from on or about 18 June 1981 to on or about 20 July 1981. 8. On 24 July 1981, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. In his request for discharge he acknowledged: a. He was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. b. He understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. c. He understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. Under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. e. He elected not to submit a statement in his own behalf. 9. On 29 July 1981, while his discharge action was being processed, he again departed his unit in an AWOL status. 10. His chain of command recommended approval of his discharge with the issuance of an under other than honorable conditions discharge. 11. On 29 July 1981, the separation authority approved his request for discharge for the good of the service under the provisions of chapter 10 of AR 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade (if applicable). Accordingly, the applicant was discharged on 26 August 1981. 12. His DD Form 214 shows he was discharged under the provisions of chapter 10, AR 635-200, in lieu of trial by court martial with a characterization of service of under other than honorable conditions. This form confirms he completed 9 months and 5 days of creditable active service and he had lost time from 16 April to 11 May 1981, 18 June to 19 July 1981, and 29 July to 26 August 1981. 13. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitation. 14. He provides a medical problem list issued on 14 December 2015. 15. An advisory opinion was received from the Army Review Boards Agency psychiatrist on 16 March 2018 in the processing of this case. The psychiatrist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition, AR 40-501 (Standards of Medical Fitness) with changes, dated 4 August 2011, and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. Based on the information available at this time, the psychiatrist concluded that there was insufficient evidence to support the applicant’s contention that the misconduct leading to his under other than honorable conditions discharge was due to the presence of major depressive disorder or any other psychiatric disorder. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCE: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post- traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI (traumatic brain injury); sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part 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 that misconduct which led to the discharge. DISCUSSION: 1. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. Based on his record of indiscipline, the separation authority determined the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel and did not rise to the level required for a general discharge. 3. This Board is 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. In this case, a medical review of the available medical records was conducted by a psychiatrist. Based on the information available at this time, the psychiatrist concluded that there was insufficient evidence to support the applicant’s contention that the misconduct leading to his under other than honorable conditions discharge was due to the presence of any disorders. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007613 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007613 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2