ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 February 2019 DOCKET NUMBER: AR20160013810 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under conditions other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Board for Correction of Military Records (ABCMR) Docket Number AC97- 10742, dated 24 November 1998 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC97-10742 on 24 November 1998. 2. The applicant states in effect, he was under mental stress, had Hepatitis C, and was under psychiatric care while he was in the service. After 6 months his under other than honorable conditions discharge was to be upgraded to an honorable discharge because of mental reasons of depression and anxiety disability. He volunteered to get out for the good of the service. 3. A review of the applicant’s service records shows the following on: * 5 December 1968 – arraigned and tried by Special Court-Martial on one specification of being Absent Without Leave (AWOL) from on or about 5 June 1968 to on or about 30 October 1968 * 3 June 1969 – accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1 June 1969 to 3 June 1969 * 10 June 1969 – accepted NJP under the provisions of Article 15 of the UCMJ for being in a public place in a fatigue uniform * 16 June 1969 – accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty * 25 August 1969 – arraigned and tried by Summary Court-Martial on two specifications of being AWOL from on or about 3 July to on or about 14 July 1969 and from on or about 23 July to on or about 29 July 1969 * 19 September 1969 – accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty * 9 October 1969 - accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty * 12 June 1970 – DD Form 458 (Charge Sheet) was completed by the Commander Special Processing Detachment, Fort Dix, NJ, charging the applicant with one specification of being AWOL from on or about 14 November 1969 to on or about 9 June 1970 4. It is presumed on a date in June 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. It is presumed following consultation with legal counsel, he requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. His intermediate and senior commander’s recommended the issuance of an undesirable discharge. Additionally, the senior commander recommended if the discharge in lieu of court-martial was not approved that the case be returned to him for trial by Special Court-Martial 5. On 19 June 1970, the separation authority approved the applicant’s discharge under the provisions of chapter 10 of AR 635-200, and directed issuance of an Undesirable Discharge Certificate. On 26 June 1970, the applicant was discharged accordingly. 6. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, Separation Program Number 246 (Chapter 10) with an under conditions other than honorable characterization of service. His DD Form 214 also shows in item 30 (Remarks) lost time of 483 days. 7. On 2 April 1997, the applicant petitioned the Board for an upgrade of his under conditions other than honorable discharge. On 24 November 1998, the Board denied his request for the reasons below: a. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. b. Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of the facts of the case. c. The applicant's contentions have been noted by the Board. However, the evidence submitted with his application and the evidence of record fail to support his contentions. Likewise, the offenses for which he was charged are too serious and his record of service is too undistinguished to warrant relief. d. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. e. In view of the foregoing, there is no basis for granting the applicant's request. 8. On 7 August 2018, the Army Review Boards Agency psychiatrist reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, the psychiatrist opined that: a. Review of the applicant’s available military medical records indicates the following: * Standard Form (SF) 88 (Report of Medical Examination), dated 29 November 1967, indicates the applicant’s PULHES was 111111 (no physical or psychological disability) * SF 89 (Report of Medical History), dated 29 November 1967, indicates he answered “No” to the following queries: “Frequent trouble sleeping?”, “Depression/excessive worry?”, “Loss of memory/amnesia?”, “Nervous trouble of any sort?”, “Any drug/narcotic habit?”, “Excessive drinking habit?” * SF 88, dated 15 June 1970, indicates his PULHES was 111111 * SF 89, dated 15 June 1970, indicates the applicant answered “Yes” to the following queries: “Frequent trouble sleeping?”, “Any drug/narcotic habit?”, “Excessive drinking habit?”, he answered “No” to “Depression/excess worry?”, “Loss of memory/amnesia?”, “Nervous trouble of any sort?” * in section 39 of the applicant’s 15 June 1970 SF 89, the examining physician commented: “Chronic anxiety and personality disorder” b. The applicant’s military records are void of documentation of any behavioral health symptoms, behavioral health diagnoses or behavioral health care. There is no indication the applicant failed to meet military medical retention requirements in accordance with AR 40-501 (Standards of Medical Fitness) as indicated by his 15 June 1970 PULHES rating of 111111 (no physical or psychological impairment). No civilian medical documentation has been provided by the applicant for review. c. Based on the information available at this time, there is insufficient evidence to support the applicant’s contention that the misconduct leading to his under conditions other than honorable discharge was due to psychiatric reasons. 9. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. 10. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), 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 at any time after the charges have been preferred. 11. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. In addition, the Board agreed there is no evidence to support behavioral-health concerns mitigated 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 to amend the decision of the ABCMR set forth in Docket Number AC97-10742 on 24 November 1998. 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 NOTES: Not Applicable. REFERENCES: 1. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 1-9e states 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 2. 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; 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. 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. 3. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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.