ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  28 January 2019

                   DOCKET NUMBER:  AR20160013126


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

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 states, in effect:  

	a.  He was going through a lot at home because his parents were going through a divorce.  It caused him to turn to alcohol as a way of dealing with his severe depression and making choices that otherwise would not have been made.  He loved the Army and when he enlisted, he had all intentions of making it his career, not knowing what lay ahead.  

	b.  He has had 35 plus years to live with the decisions he made during the best days of his life while serving our country, only to make the worst decision of his life when dealing with what was happening back home.  If he could do it all over again, without a doubt, he truly would have made much better decisions.

	c.  He was under the impression that he was given a general discharge when he left
the military.  He requested a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and found out that was not the case.  This bothered him for years.  He asks that the Board takes this request into consideration because he does take a lot of pride in his short service to this great country he once served.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 12 March 1980.  

	b.  He accepted Article 15, UCMJ (Uniform Code of Military Justice) on 30 December 1980 for being absent without leave (AWOL).  

	c.  On 9 November 1981, court-martial charges were preferred against him for being AWOL from 2 April 1981 to 26 October 1981.

	d.  On 9 November 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he indicated:

* he had not been subjected to any coercion whatsoever by any person
* he understood the elements of the offenses charged and he was guilty of the charges against him or of the lesser included offenses
* the offenses authorized the imposition of a bad conduct discharge or dishonorable discharge
* under no circumstances did he desire further rehabilitation
* he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf
* he did not desire a separation physical

	e.  The applicant's immediate and intermediate commanders recommended approval of his request for discharge.

	f.  On 24 November 1981, the separation authority approved the request for discharge.  He directed that the applicant to be discharged with an under other than honorable conditions discharge.  He also directed he be reduced to private E-1. 

	g.  Accordingly, the applicant was discharged with an under other than honorable discharge on 19 January 1982.  His DD Form 214 shows he completed 1 year and 3 months of active service, with 215 days of lost time.  This form also shows in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) he was awarded or authorized: 

* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Army Service Ribbon
* First Class Marksmanship Qualification Badge with Grenade Bar

4.  The Army Review Boards Agency (ARBA) clinical psychologist reviewed the case and rendered an advisory opinion on 16 August 2018, referencing the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Military Fitness), with revisions, dated 4 August 2011; and AR 635-200, dated 6 September 2011; and Memorandum, from the Secretary of Defense, dated 3 September 2014, subject:  Supplemental Guidance to Military Boards for Correction Military Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (2014 Supplemental Guidance).  The clinical psychologist stated: 

	a.  The applicant's military medical record contains no documentation of any behavioral health symptoms or diagnoses, to include depression. 

	b.  The electronic VA medical record (JLV) indicates that the applicant has not
registered with the Department of Veterans Affairs (VA).

	c.  No civilian medical documentation is provided for review.

	d.  There is insufficient evidence to support that the applicant's contention that his misconduct was due to severe depression and is mitigated by such.

	e.  The applicant's military records do not support the existence of depression or any other behavioral health disorder at the time of discharge.

	f.  The applicant's military records indicate that the applicant did meet medical retention standards in accordance with AR 40-501.

	g.  There are no mitigating behavioral health diagnoses for the misconduct that resulted in the applicant's under other than honorable conditions discharge from the Army.

5.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to review and comment; he did not respond.

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record 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.  As a result of the length service and the length of the AWOL, the board found that the characterization of service was appropriate and that no injustice existed. Additionally, the Board found no medical documentation to mitigate the misconduct.

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.

												 ___________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.


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 (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 has committed an offense or offenses under the UCMJ 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 with no coercion by Army personnel.  A medical examination was not required but could be requested by the Soldier under the provisions of AR 40-501 (Standards of Medical Fitness).  A Soldier who requests a medical examination must also have a mental status evaluation before discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  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.

	d.  When a member is to be discharged under other than honorable conditions, the convening authority will direct an immediate reduction to the lowest enlisted grade.

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 applicant's service.

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 (TBI); 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.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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; 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 or 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)	 AR20160013126


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