DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 6 May 2019 MEMORANDUM FOR Army Review Boards Agency, Case Management Division, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160008556 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 5 February 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army records of the individual concerned be corrected by issuing a DD Form 214 to show a General, under honorable conditions discharge for the period of service ending 27 March 1973. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 29 August 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: 5/7/2019 X Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20160008556 APPLICANT REQUESTS: His undesirable discharge (UD) be upgraded to an under honorable conditions (general) discharge (GD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 27 March 1973 * Department of Veterans Affairs (VA) Support Services for Veteran Families (SSVF) letter showing enrollment * SSVF letter indicating imminent end to his SSVF eligibility * his social security card, State of Florida driver license, and electric utility bill * 41 pages of private medical records * 8 pages of correspondence with his Member of Congress 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 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 contends that at the time of separation, he was 17 years old and had domestic problems that caused him to go AWOL. He was young and made stupid decisions for which he is still paying. He believes he would have been a good Soldier if it wasn’t for his ongoing problems. He is now 61 years old with several medical issues but no benefits. His medical issues include post-traumatic stress disorder (PTSD), diabetes, high blood pressure, sleep apnea, hepatitis c, an enlarged prostate, liver damage, and chronic obstructive pulmonary disease. He has exhausted all of his options, has no income, and will be homeless. His medical problems are life threatening; one of the medications he needs costs $100.00 per pill. 1. 3. The applicant enlisted in the Regular Army on 31 August 1972, at 17 years of age. There is no evidence he completed basic training. 4. The applicant was reported absent without leave (AWOL) on three occasions: * from on or about 13 September through on or about 16 September 1972 * from on or about 2 October through on or about 13 October 1972 * from on or about 16 October 1972 through on or about 28 February 1973 5. A Federal Bureau of Investigation (FBI) Form 220, dated 22 February 1973, shows he was arrested for auto theft on 19 October 1972. He was held at the Delaware State Hospital to undergo a psychiatric evaluation. He was returned to military control on 7 March 1973. 6. The applicant acknowledged his rights before being questioned related to his AWOL offense on 7 March 1973. He requested to consult with counsel at that time. 7. Court-martial charges were preferred on 9 March 1973 for his third period of AWOL. The completed charge sheet is not available for review. 8. The applicant's separation packet is not available for review in this case. However, his record contains a DD Form 214 that shows he was discharged on 27 March 1973 under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and he was issued a UD. He was credited with completing 1 month and 25 days of creditable service and he had 152 day of lost time. 9. The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 10. In the processing of this case, an advisory opinion was obtained on 26 November 2018 from the Army Review Boards Agency Clinical Psychologist. This advisory official opined: a. A Report of Medical History, dated 12 March 1973, indicated the applicant had frequent trouble sleeping, depression or excessive worry, and nervous trouble. b. The applicant consulted with legal counsel and voluntarily requested to be discharged In Lieu of Trial by Court-Martial under the provisions of Chapter 10, AR 635- 200 on 15 March 1973. In doing so, he voluntarily consented to understanding he could be issued an undesirable discharge which could deprive him of both Army and Veteran’s Administration benefits and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. a. c. A Statement of Medical Condition, dated 27 March 1973, indicated there was no change to the applicant's medical condition and he was medically cleared for separation. d. A civilian medical document, dated 28 March 2016, indicated the applicant was an established client receiving psychiatric services at Gracepoint Wellness Mental Health Clinic since August 2015. His current diagnosis was PTSD, for which he was prescribed Vistaril and Risperadal. e. Documents from the National Personnel Records Center, dated 2 February 1994, also indicated the applicant was a homeless veteran. Legal documents, to include a congressional inquiry, dated 8 June 2016, indicated the applicant was at risk of being homeless, was not in the best of health, and was currently in litigation for social security. f. A letter from the Department of Veterans Affairs, dated 11 April 2016, indicated the applicant was enrolled in the SSVF program and had a maximum of 3 months of SSVF funding until becoming homeless again. g. He does not have a service-connected disability rating from the VA but has been diagnosed with and has received services related to homelessness and legal issues. h. Based on a thorough review of available medical records, there is insufficient evidence to determine if a behavioral health condition existed during his military service. Barring evidence to the contrary, it appears the applicant met medical retention standards and was medically cleared for separation. His military medical records do not include any evidence of a behavioral health condition and although civilian medical records indicate a diagnosis of PTSD, there is a lack of evidence regarding the basis of the diagnosis and if it was attributed to military service. 11. A copy of the advisory opinion was forwarded to the applicant. He did not provide a response. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the applicant’s statement, the Board determined no relief was warranted. Based upon the short service period and, in the Board’s opinion, no evidence raising to the level of mitigating the misconduct, the Board determined no relief was warranted. The Board determined that the characterization of service for the applicant’s military service was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :x : GRANT FORMAL HEARING :x :x :x 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 for correction of the records of the individual concerned. 2/22/2019 X CHAIRPERSON 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 Army Board for Correction of Military Records (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 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a. 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.