BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160007928 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 BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160007928 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 upgrade of his under other than honorable conditions discharge to honorable. 2. The applicant states: a. He was young and had just gotten married when he enlisted in the Indiana Army National Guard (INARNG). At the time, he thought he was doing the right thing by going absent without leave (AWOL), but he still knew it was wrong. He is older now and would like the chance to make up for his mistakes. He had never applied for any government jobs. b. His father served in World War II, and his brother was in Vietnam. He has lived with regret for going AWOL. He was just 21 years old and recognizes it is no one's fault but his own. He states he would like to make things right with his family and friends. He has one friend who served in Vietnam, and this friend would not write a letter of support because he is still angry with the applicant for his "stupidity." He notes his children are also upset with him. 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 11 September 1980 * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 December 1981 * physician's letter, dated 1 September 2015 * six letters of support, four undated, and two dated between January and February 2016 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 INARNG on 11 September 1980. 3. INARNG Orders Number 94-44, dated 15 May 1981, ordered him to active duty for training, with a reporting date of no later than 25 June 1981. 4. He completed basic combat training at Fort Dix, NJ, and was reassigned to the U.S. Army Quartermaster School, Fort Lee, VA, for advanced individual training (AIT), effective 21 August 1981. 5. While at his AIT unit at Fort Lee, the applicant departed his unit in an AWOL status, effective 0630 hours, 8 September 1981. Effective 8 October 1981, his unit changed his status to dropped from the rolls. 6. Also on 8 October 1981, at 1930 hours, the applicant surrendered himself to military authority at Fort Harrison, IN. He was transferred to the U.S. Army Personnel Control Facility, Fort Knox, KY. 7. On 16 October 1981, the Personnel Control Facility commander preferred court-martial charges against him for being AWOL from 0630 hours on 8 September to 1930 hours on 8 October 1981 (a period of 30 days and 13 hours). 8. On 19 October 1981, after consulting with legal counsel, the applicant submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). a. His request indicated he was taking this action of his own free will, without coercion from anyone, and he was aware of the implications attached to his request. He also admitted he was guilty of the charges against him or of lesser- included offenses that authorized the imposition of a bad conduct or dishonorable discharge. b. Further, he acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of many or all benefits as a result of such a discharge. He elected not to submit a statement in his own behalf. 9. INARNG Orders Number 215-10, dated 2 November 1981, separated the applicant from the INARNG with a general discharge, effective 7 October 1981. 10. On 24 November 1981, the separation authority approved the applicant's request for discharge and directed he receive an under other than honorable conditions characterization of service. He was discharged accordingly on 14 December 1981. 11. His DD Form 214 showed he completed 4 months and 20 days of net active creditable service, with lost time from 8 September to 7 October 1981 (a total of 30 days). 12. On 16 March 1984, he petitioned the Army Discharge Review Board (ADRB) to upgrade his character of service to honorable. The ADRB determined his discharge was proper and equitable; his request was denied on 26 July 1985. 13. The applicant provides: a. Letter, dated 1 September 2015, apparently prepared by the applicant's physician, in which 24 medical conditions are listed. The list includes depression/anxiety disorder. b. Six letters of support from family members and friends, all of which essentially describe the applicant as a person who made mistakes when he was a young man, but he regrets his actions and has made positive changes in his life. 14. On 23 October 2017, an Army Review Boards Agency (ARBA) psychologist provided a medical advisory opinion. a. The Case Management Division (CMD) requested a review of the applicant's available records to determine whether any medical conditions were considered during separation processing. b. The ARBA psychologist found: * no evidence supporting the presence of post-traumatic stress disorder or another behavioral health (BH) condition that would have warranted medical separation * in addition, there was no indication any BH conditions were present when the applicant committed the misconduct (AWOL) that led to his adverse discharge; due to the absence of BH conditions, no BH- related behaviors were considered as mitigating for his misconduct * based on available evidence, the applicant met medical retention standards and any medical conditions were considered during his separation processing 15. On 24 October 2017, CMD, ARBA, provided the applicant a copy of the ARBA medical advisory for review and comment. He did not submit a response. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court- martial at any time after the charges have been preferred. A discharge under other than honorable conditions was normally considered appropriate. b. Paragraph 1-13a stated that an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 1-13b stated that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. The Manual for Courts-Martial (MCM), as in effect at the time, is the official guide for the conduct of courts-martial. a. Chapter XXV (Punishments), paragraph 127c (3) (Maximum Limits of Punishments – Computation of Period of Unauthorized Absence) stated: * any one continuous period of absence that totals 24 hours or less is counted as one day * a period of more than 24, but not more than 48 hours, is counted as two days * for example, a Soldier is AWOL from 0600 hours on 4 April and returns from AWOL at 1000 hours on 7 April; this equates to a 76 hours absence, and the maximum punishment would be based on 4 days (the period exceeds 3 days/72 hours) * if a Soldier is AWOL from 0600, 4 April and returns 0600, 7 April, the absence is 72 hours; the maximum punishment is calculated based on 3 days b. It contains a chart showing the maximum punishments associated with each violation of the UCMJ. * Article 86 (AWOL for more than 3 days, but not more than 30 days) – 6 months confinement and forfeiture of two-thirds pay per month for no more than 6 months * Article 86 (AWOL – More than 30 days) – dishonorable discharge, total forfeiture of pay and allowances, and 1 year confinement 3. 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. 4. On 25 August 2017, the Office of the Under Secretary 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; sexual assault; and 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. 5. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD, or other BH condition, was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or another BH condition existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or other BH condition? * Did the applicant provide documentation of a diagnosis of PTSD or BH symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 6. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had PTSD, or another BH condition, at the time of discharge, it is presumed they were properly discharged based upon the evidence that was available at the time. a. 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 other BH 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. b. BCM/NRs 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 another BH condition as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. a. Discharges under this chapter are based on a voluntary request and the evidence of record shows the applicant voluntarily, willingly, and in writing requested discharge in lieu of trial by court-martial. b. It appears requirements of law and regulation were met and the evidence indicates the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 2. 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. An ARBA psychologist conducted a review of the applicant's available records and determined the following: * no evidence of a BH condition that would have warranted medical separation, and no indication that there were any BH conditions present when the applicant committed the misconduct (AWOL) * based on available evidence, the applicant met medical retention standards and any medical conditions were considered during his separation processing 3. By regulation, only Soldiers who have committed offenses under the Uniform Code of Military Justice, for which the maximum punishments include a dishonorable or bad conduct discharge, may request separation under chapter 10, AR 635-200. a. The applicant's DD Form 214 reflects 30 days of lost time. The maximum punishment for a 30-day period of AWOL does not include a punitive discharge and would not fulfill the requirements of chapter 10, AR 635-200. b. His charge sheet, however, indicates his absence was from 0630 hours on 8 September until 1930 hours on 8 October 1981 (30 days and 13 hours). This distinction is significant because the maximum punishment for more than 30 days (even if for only 13 hours) includes a dishonorable discharge, while 30 days of being AWOL does not. c. Although his DD Form 214 only reflects 30 days, it appears the applicant met the regulatory criteria for submission of chapter 10, AR 635-200 based on having been absent for 30 days and 13 hours. As such, there does not appear to be an error in his administrative separation. I BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160007928 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) AR20160007928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007928 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2