ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 February 2019 DOCKET NUMBER: AR20160009697 APPLICANT AND COUNSEL REQUESTS: an upgrade of the applicant's character of service from under other than honorable conditions to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's brief * eight letters of reference/support 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 and counsel state that during his service, he had a mental breakdown. His mental state may mitigate his discharge status. He turned his life around since his discharge. a. He served in the Army from 1987 to 1990 and received an honorable discharge. He then reenlisted in the Army from 1990 to 1991, at which point he went absent without leave (AWOL) for a few days, resulting in his receipt of an under other than honorable conditions discharge in lieu of a general court-martial. He believes he is entitled to an honorable discharge. b. Upon reenlisting, in an effort to serve again at Fort Sill, he was informed that he was being sent to Fort Lee. Shocked and overwhelmed by fear because he did not feel that he received the proper training to serve at Fort Lee, he went AWOL over the span of a few days. This served as a mental breakdown of sorts for him, leading him to drink and lose control of his life. Once he returned, he chose to be discharged in lieu of a court-marital. c. Shortly after his discharge, he still did not have control over his life, as he suffered from depression, anxiety, and he was convicted of felonies dealing with sex and drugs. In 2001, he began to regain control, giving up drinking and attending counseling. He still attends counseling to this day, and he currently volunteers at the American Legion in Utica, New York, and attends a local church. d. He provides a vast amount of character references that say nothing but endearing things. These character references and his changed behavior since 2001 show he has been able to turn his life around completely since leaving the service and suffering from depression and anxiety. He deserves a chance to continue to improve his life, and with an upgrade of his character of service, he will be able to do so. 3. On 1 June 1987, the applicant enlisted in the Regular Army and he was honorably discharged on 25 October 1989 for immediately reenlistment on 26 October 1989. 4. On 28 June 1990, he appeared before the United States District Court, Western District of Oklahoma for driving under the influence of alcohol (DUI). He pled guilty to driving while intoxicated. The court sentenced him to pay a fine, six month unsupervised probation, and required him to attend Community Counseling Center (CCC) and DUI school. 5. He accepted nonjudicial punishments (NJP) under the provisions of Article 15, Uniform Code of Military Justice: * 9 January 1991 - for being AWOL from 31 December 1990 to 3 January 1991 * 6 January 1991 – for * failing to obey a lawful order from a noncommissioned officer (NCO) * being disrespectful to an NCO * dereliction in the performance of his duties * being AWOL from 9 January 1991 to 15 January 1991 6. He was issued a Warning Rights Procedure/Waiver Certificate, dated 15 February 1991, wherein a Criminal Investigation Command (CID) Special Agent (SA)/investigator requested to question him for the offenses of indecent assault and conspiracy, for which he was suspected. He was informed of his rights and indicated: * he did not want to give up his rights * he did not want to be questioned or say anything * he wanted a lawyer 7. The record includes a final CID repot and evidence, which includes several sworn statements made to a CID SA between 15 and 19 February 1991 involving the assault of a female Soldier on 14 February 1991. These documents show: a. CID titled the applicant for indecent assault, and three other Soldiers for conspiracy and indecent assault. b. The report states that a preliminary investigation disclosed that the applicant and three other Soldiers forced a female Solder into a room and onto a bed, while the applicant began rubbing her breasts and the remaining three Soldiers hit her on the buttocks. 8. On 18 March 1991, based on the documentary evidence and exhibits regarding the CID investigation, the commander recommended the applicant receive a trial by General Court-martial. 9. A charge sheet, dated 18 March 1991, shows the applicant was pending a court-martial of two specifications of indecent assault, three specifications of assault, and two specifications of conspiracy to commit an indecent assault. 10. On 20 March 1991, after consulting with legal counsel, the applicant voluntarily requested a discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he indicated he had been advised of the implications attached to his request and understood that if his request was accepted, his service could be characterized as under other than honorable conditions and he could be furnished an undesirable discharge. b. He acknowledged he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all State, Federal, and/or Army benefits if he received an undesirable discharge. He elected not to submit a statement in his behalf. 11. Discharges under the provisions of Army Regulation 635-200, chapter 10, in effect at the time provided that a Soldier, whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge, could voluntarily request a discharge for the good of the service in lieu of a trial. The Soldier was required to sign the request indicating he understood that he could receive service characterized as under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. 12. On 27 March 1991, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an under other than honorable discharge. 13. The applicant’s DD Form 214 shows he was discharged on 2 April 1991, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service in lieu of a trial by court-marital, and he received an under other than honorable conditions characterization of service. 14. There is no evidence the applicant applied to the Army Discharge Review Board within that Board's 15-year statute of limitations. 15. On 18 December 2017, the Army Review Boards Agency (ARBA) Staff Clinical Psychologist rendered an advisory opinion. It states: a. A review of military records indicated no history of behavioral health conditions or counseling received while in service. b. A civilian medical letter from Upstate Cerebral Palsy Community Health and Behavioral Service Division, dated 10 December 2014, indicated the applicant received services since August 2009. Treatment included use of psychiatric medications: Lexapro and Risperdal; however, a diagnosis of a service-connected condition was not indicated. c. Based on a thorough review of available military and medical records, there is no evidence to support the applicant’s contention that his misconduct was related to a behavioral health condition. The applicant demonstrated a propensity to disregard rules and regulations and there is no evidence of a behavioral health condition that would be reasonable related to the misconduct of engaging in sexual misconduct. This observation does not negate the applicant’s post-service treatment or accomplishments; however, there is no evidence that a behavioral health condition mitigated his misconduct to warrant a change to his characterization of service. 16. The medical advisory opinion was provided to the applicant for an opportunity to respond. He did not respond. 17. The applicant provides seven character letter references, which describes the applicant as a very nice person and family man. The letters state he has made a sincere effort to change his life by attending church, he is dependable and performs tasks that exceeds the standard with the utmost professionalism, his personal behavior is well above that of his contemporaries, and he has turned his life around. 18. The applicant provides a letter from the Upstate Cerebral Palsy Community Health and Behavioral Services Division, which states, "[Applicant] has been receiving services at this clinic since November 2011; I previously treated [applicant] at another mental health care facility in this city from August 2009 through November 2011 with no break in care. His psychiatric symptoms have been stable using Lexapro and Risperdal." 19. The applicant and his counsel provided statements and eight letters of reference that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that relief was not warranted. Based upon the seriousness of the offenses committed by the applicant, the Board determined that the characterization of service was appropriate and that no relief should be recommended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : 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. SIGNATURE: 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him/her triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he/she understood that he/she could receive service characterized as under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished an individual who was discharged for the good of the service. b. An honorable discharge is given when the quality of the Soldier’s service has generally met the standards of acceptable conduct and duty performance. c. 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. 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 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. 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. 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. a. Evidence may also include changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction. b. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD; TBI; or of behavior consistent with experiencing sexual assault or sexual harassment. c. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20160009697 0 2 1