IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20160007984 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: 7 June 2018 DOCKET NUMBER: AR20160007984 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 service characterization, from under other than honorable conditions (UOTHC) to under honorable conditions (general). 2. The applicant states he was suffering from a mental disorder at the time. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 June 1983. 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 on 19 January 1981. He completed his initial entry training and was awarded military occupational specialty 05B (Radio Operator). He completed the Basic Airborne Course enroute to an assignment at Fort Bragg, NC. 3. The applicant progressed through the ranks and was promoted to specialist four (SP4) on 1 November 1982. 4. DA Forms 4187 (Personnel Action) show: a. The applicant's duty status was changed from present for duty (PDY) to confined by civil authorities (CCA) on 21 December 1982. He was arrested for failing to pay a traffic fine and sentence to 30 days in jail. His duty status was changed from CCA to PDY on 30 December 1982 after he completed a third of his sentence. b. The applicant's duty status changed from PDY to absent without leave (AWOL) on 10 January 1983. He was subsequently dropped from the rolls (DFR) of the Army on 9 February 1983. c. The applicant's duty status changed from DFR to PDY after he was apprehended by civil authorities and returned to military authority on 26 February 1983. d. The applicant's duty status changed from PDY to DFR when he was reported AWOL again on 28 February 1983. His duty status changed from DFR to PDY when he surrendered to civil authorities, and later transferred to military authority on 5 April 1983. 5. The applicant's discharge packet is not available for review; however, his record contains a DD Form 214 that shows he was discharged on 10 June 1983, 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). His DD Form 214 further shows he was discharged in the rank/grade of private (PV1)/E-1 and his service was characterized as UOTHC. 6. The applicant's record is void of evidence that shows he was diagnosed with a mental or behavioral-health condition during his period of service. 7. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 8. In the processing of this case, the Army Review Boards Agency (ARBA) Senior Medical Advisor provided an advisory opinion on 15 March 2018. The advisory official noted and opined the following: a. His available record does not reasonably support boardable behavioral- health condition(s) existed at the time of his service. b. Behavioral-health conditions did not mitigate his misconduct. c. No behavioral-health evaluation was conducted prior to his separation because he separated in lieu of trail by court-martial. d. His medical condition(s) were duly considered during separation processing and a review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. 9. The applicant was provided a copy of the advisory opinion on 22 March 2018, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. 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 provides 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. 2. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. 3. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. 4. Although DoD acknowledges that some Soldiers who were administratively discharged UOTHC 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 records 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 UOTHC characterization of service. 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 UOTHC. 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. BCM/NRs 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. 5. 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 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 applicants' service. 6. 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, 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, 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. DISCUSSION: 1. The applicant requests an upgrade of his UOTHC character of service. 2. The Board must give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on behavioral health conditions. The Board is required to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 3. The advisory opinion states that the applicant's available record does not reasonably support boardable behavioral-health condition(s) existed at the time of his service, and that [any] behavioral-health conditions [the applicant may have had] did not mitigate his misconduct. 4. The applicant did not provide nor does his record contain any evidence to show he was diagnosed with a behavioral health condition at the time of his military service. 5. The applicant's record is void of the specific facts and circumstances surrounding his discharge. However, it appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, after which he was discharged under the provisions of Army Regulation 635-200, chapter 10. 6. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met, his rights were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service during his enlistment. The characterization of service he received was commensurate with the authority for his discharge. 7. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions (general) characterization of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 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) AR20160007984 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007984 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2