ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160014086 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 14 pages of civilian medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 he was having problems while he served his country. He incurred a serious head injury/concussion, and suffered from headaches, depression, and anxiety. To this day, he still takes medication for these conditions. He has been out of the military for more than 22 years and is trying to raise his standing in life. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 9 February 1988. Based on his request, he enlisted in the Regular Army, effective 28 March 1990. (His USAR discharge orders are not available). 4. On 8 January 1993, his chain of command approved a bar to reenlistment because the applicant had written over $2,000 worth of dishonored checks. 5. At some point prior to 13 January 1994, the applicant's commander preferred court- martial charges against him for 37 violations of Article 123a (Uttering Worthless Checks with the Intent to Defraud), Uniform Code of Military Justice (UCMJ). On 13 January 1994, the applicant requested discharge in lieu of court-martial under the provisions of chapter 10 (Discharge in Lieu of Courts-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his written request, he affirmed counsel had advised him of the charges and his rights; he elected this discharge of his own free will and opted not to provide a statement in his own behalf. The separation authority approved his request on 27 January 1994. 6. Per paragraph 6-15 (Approved for Discharge from the Service Under Other than Honorable Conditions), AR 600-8-19 (Enlisted Promotions and Reductions), he was reduced to private (PV1)/E-1, effective 7 February 1994. 7. The applicant was discharged under other than honorable conditions on 7 February 1994. He was authorized or awarded the National Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon. 8. The applicant provided medical records, which indicate he suffers from anxiety, panic attacks, headaches, and insomnia; his physicians have prescribed medications. 9. On 6 June 2018, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. a. The ARBA psychologist reviewed the documents provided by the applicant; his Army service treatment records and any Department of Veterans Affairs medical records were not available. b. Based on the available documentation, the ARBA psychologist found: * applicant met medical retention standards while on active duty * no indication he suffered from a behavioral health condition that would have been eligible for referral into the Army's Disability Evaluation System * no proof of a behavioral health issue that would mitigate the misconduct that led to his adverse separation 10. On 7 June 2018, the Case Management Division, ARBA, provided the applicant a copy of the advisory opinion for review and/or comment. He submitted the following response: * he had a distinguished service record both as a member of the U.S. Army Reserve and during the first part of his active duty service, when he was stationed in Germany * in Germany, he suffered a traumatic head and neck injury during a combat drill; he incurred a second head injury while participating in physical training * he was reassigned from Germany to Fort Benning, GA; his unit conducted combat drills while at Fort Irwin, CA; this was when he had his first anxiety attack; he passed out, but the doctor could not determine why * after his unit's return to Fort Benning, he had a second attack and spent 3 days in the hospital; he told the doctor he felt dizzy, lightheaded, and depressed; his mood had changed and he did not know what to do * he was discharged in 1994 and, since his discharge, he has been hospitalized three times and had numerous visits to the doctor * one of the doctors did a brain scan; she diagnosed the applicant with depression, along with panic and anxiety 11. Discharges under chapter 10, AR 635-200 are voluntary. In this case, the applicant has provided evidence he suffers from behavioral health issues. The Board should consider the applicant's evidence, in the context of the available service record, and in accordance with the published equity, injustice, and/or clemency determination guidance. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. The Board found no evidence in the record of a behavioral health issue that would mitigate the misconduct that led to his adverse separation. Therefore the Board denies the applicant’s request to upgrade his under other than honorable conditions discharge to general under honorable conditions. 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 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted Soldiers. a. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 provided 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. A discharge under other than honorable conditions is normally considered appropriate. 3. The Table of Maximum Punishments, Manual for Courts-Martial, showed both bad conduct and dishonorable discharges were punishments for violating Article 123a, UCMJ. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance concerning the consideration of requests by Veterans for the modification of their discharges due, in whole or in part, to: mental health conditions, including Post Traumatic Stress Disorder (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 to 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 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. ABCMR Record of Proceedings (cont) AR20160014086 5 1