ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    17 April 2019

	DOCKET NUMBER:  AR20160014980


APPLICANT REQUESTS:  The applicant requests his under honorable conditions (general) discharge be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214  (Certification Release of Discharge)
* Personal Statement
* Practitioner Letter of 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 states that his situation shortened his tour and that he did not have good leadership or any direction on his problem.  He reported developing a fear of sleeping his first year in the military, which made him ashamed and depressed.  His fear of sleeping caused him to get into a lot of trouble.  He did not know who to request for help and thought that he could deal with it.

3.  On 23 October 1979, the applicant joined the Army at the age of 20.  

4.  On 18 January 1982, the applicant’s immediate commander initiated a Bar to Reenlistment against the applicant referencing the following offenses:

* Summary Court Martial for Disrespect to an NCO (7 January 1980)-served 21 days of hard labor and confinement.
* Dereliction of Duty (31 November 1981)
* Failure to Repair on multiple occasions
o 5 November 1979
o 7 December 1979
o 15 October 1980
o 5 December 1980
o 12 February 1982

* Absent without leave on 5 separate occasions
o 19 December 1979 to 1 January 1980
o 11 April to 27 April 1980
o 18 January 1982 to 20 January 1982
o 29 January 1982 to 1 February 1982
o 3 February 1982 to 12 February 1982

5.    He was furnished a copy of the bar, but declined making a statement on his behalf.  The approval authority reviewed the bar and approved it.  On 19 January 1982, the applicant’s commander waived the rehabilitative transfer stating that it would not be beneficial to the military service to retain the applicant because of his past misconduct and the fact that he has made no effort to improve his attitude or job performance.
6.  On 29 January 1982, the applicant’s immediate commander notified him that he was being recommended for separation in accordance with AR 635-200, Chapter 13 for Apathy, which states a lack of appropriate interest, defective attitudes, and the inability to expend efforts constructively.  
7.  On 18 February 1982, the applicant acknowledged the command’s intent to discharge him in accordance with Chapter 13. He consulted with legal counsel and was advised of the basis of his separation under provisions of Army Regulation 635-200, Chapter 13.  He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits.  He signed the acknowledgement and indicated he would not submit statements in his own behalf.
8.  On 16 March 1982, the applicant's appropriate separation authority approved the discharge and stated the applicant would be issued a General Discharge certificate and he would not be assigned to the Individual Ready Reserve.

9.  On 26 March 1982, he was discharged accordingly, his service was characterized as Under Honorable Conditions (General) for unsuitability-apathy, and defective attitude or inability to expend effort constructively.  His DD 214 shows he completed 2 years, 4 months, and 9 days of total active service; and reflects the award of the Drivers Badge and the Army Service Ribbon.  

10.  A personal statement from the applicant reveals that during his second year of service, he had a situation in which he went out one night drinking with friends, went back to the barracks, fell asleep and was awoken by his First Sergeant and was told to check on a friend who lived off post.  Upon arrival to his friend’s house, he found that the friend had committed suicide by putting a shotgun in his mouth.  The applicant contends he was left in a state of shock and after cleaning up the mess left by the suicide and he could not get the smell of his friend’s body out of his mind.  The statement contends that he was so depressed and stressed that he accepted a discharge to ease his problems.  He further admits to turning to drugs for 25 years, but subsequently sought treatment and has been clean for 3 years.

11.  A civilian medical record, dated 17 August 2017, indicated the applicant had participated in Opioid Replacement Therapy since 2 August 2010, to include individual and group treatments.  The record noted that the applicant has been abstinent of all mood altering substances for the past three years and had an overall good prognosis as evidencing by demonstrating a stable living environment and having negative drug screens.

12.  A medical advisory opinion from the Army Review Board’s Agency Clinical Psychologist was provided on 31 January 2019 and states, in pertinent part, a mental Status evaluation dated 23 February 1982, indicated he was not diagnosed with a medical or behavioral health condition, he possessed the mental capacity to understand and participate in proceedings, was mentally responsible, and met medical retention requirements.  Based on the thorough review of available medical records, there is no evidence of a behavior health condition during the applicant’s time of service.  There is also no evidence that and undiagnosed behavioral health condition would be reasonably related to the propensity of misconduct by the applicant.  There is no evidence that a behavioral health condition mitigated the applicant’s misconduct.

13.  AR 635-200, Chapter 13 separates members who demonstrate a display of apathy (lack of appropriate interest), defective attitude, and inability to expend effort constructively, as evidenced by his multiple instances of misconduct and a bar to reenlistment.  The available evidence provides a mental status evaluation indicating he was not diagnosed with a medical or behavioral health condition, he possessed the mental capacity to understand and participate in proceedings, was mentally responsible, and met medical retention requirements.  

14.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when considering discharge upgrades, the Board found that relief was not warranted.  Based upon the multiple offenses over an extended period of time, as well as a lack of evidence by the applicant showing he has grown and learned from the events related to the discharge, the Board concluded that characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

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.
	 
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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade.  Board action was not required for this reduction.

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, character and behavior disorder, and apathy.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.
   
    b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

    c.  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.

   d.  An UOTHC is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct.  In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 

   	 

4.  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.  

     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, 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.  

     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.


ABCMR Record of Proceedings (cont)	 AR20160014980


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