ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160015281 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions (UOTHC). 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, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states: a.He was stationed at Fort Stewart, GA, and undergoing mental health counselingby a psychiatrist. He was under tremendous stress at home because his wife was having an extra-marital affair. He did not feel the counseling was helping and he left the center, only to be charged with being absent without leave (AWOL). b.He had to address his home crisis and doesn’t feel he was given the opportunityto explain his situation, but rather given a UOTHC discharge for being AWOL. He had been a model Soldier prior to this incident, having reenlisted twice and earning awards. Please reconsider his discharge because the last 20 years and for the rest of his life this has and will follow him. 3.He enlisted in the Regular Army on 20 June 1978. He reenlisted in the RegularArmy on 24 March 1982 and again on 13 November 1986. 4.On 14 September 1987, he received a General Officer Memorandum of Reprimandfor testing positive for marijuana on 4 August 1987. 5.On 13 October 1987, he was charged with: •failing to go at the time prescribed to his appointed place of duty on or about3 August 1987•failing to go at the time prescribed to his appointed place of duty on or about7 August 1987•failing to go at the time prescribed to his appointed place of duty on or about11 August 1987•failing to go at the time prescribed to his appointed place of duty from on or about 12 August 1987 through 25 August 1987•absenting himself from his unit without authority from on or about 28 August 1987 until on or about 2 September 1987•absenting himself from his unit without authority from on or about 5 September 1987 until on or about 12 October 1987•willfully disobeying a lawful command on or about 25 August 1987•willfully disobeying a lawful order on or about 10 August 1987•being derelict in the performance of his duties on or about 5 August 1987•disobeying a lawful order on or about 6 August 1987•using marijuana between on or about 10 July 1987 and 10 August 1987 6.On 27 October 1987, he voluntarily requested discharge for the good of the servicein lieu of trial by court-martial under the provisions of Army Regulation 635-200(Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counseland was advised of the basis for the contemplated trial by court-martial, the maximumpermissible punishment authorized under the UCMJ, the possible effects of a dischargeunder other than honorable conditions, and the procedures and rights available to him.He did not submit statements in his own behalf and waived a separation medicalexamination. 7.On 3 November 1987, his immediate commander recommended approval of hisrequest for discharge and recommended the issuance of a UOTHC DischargeCertificate. He stated approval of the applicant’s discharge would have an overallpositive effect on their unit’s morale and good order. The seriousness of the offenses ofwhich he is charged clearly indicate he possessed very little if any rehabilitativepotential. 8.On 5 November 1987, the officer exercising general court-martial conveningauthority approved his discharge under the provisions of Army Regulation 635-200,chapter 10, for the good of the service, and directed his reduction to the lowest enlistedgrade and the issuance of a UOTHC Discharge Certificate. 9.His DD Form 214 shows he was discharged on 17 November 1987 for the good ofthe service for conduct triable by court-martial and his service was characterized asUOTHC. He completed 9 years, 3 months and 12 days of active service during thisperiod with lost time from 28 August 1987 through 12 October 1987. The remarkssection shows: //Immediate reenlistments this period: 780620-820323; 820324-861112// 10.There is no evidence in his military records he was diagnosed with any physical ormental conditions during his service. 11.On 27 November 2018, the Army Review Boards Agency (ARBA) psychiatristprovided an advisory opinion, which states: a.On 12 July 2018, ARBA sent a letter to the applicant requesting he providedocumentation of his mental health issues. As of 20 August 2018, this request had not been answered by the applicant. Information reviewed included the applicant’s application, his military personnel records and the VA electronic medical record (JLV). No hard copy military medical records were provided for review. b.A “Personnel Qualification Record, Part 1”, dated 20 August 1987, indicates thatthe applicant’s physical profile rating PULHES was 1 1 1 1 1 1 with a psychological profile of S-1 (no psychological impairment). c.A memorandum titled “Letter of Reprimand”, dated 14 September 1987, states“…a urine sample you provided on 4 August 1987 tested positive for marijuana. Drug abuse is incompatible with military service. Accordingly, your retention on active duty is the subject to further evaluation…You are hereby reprimanded…” M.S., MG, Commanding. d.A memorandum titled “Request for Discharge for the Good of the Service”, dated29 October 1987, authored by T.P., CPT, Commanding, states “…There is no reasonable ground to believe that the soldier was, at the time of his misconduct, mentally defective, deranged or abnormal.” e.There is no indication in the applicant’s military records that he failed to meetmilitary medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness. f.Review of the electronic VA medical record (JLV) indicates it contains no clinicalinformation regarding the applicant. JLV, at this time, contains only administrative information regarding the applicant. g.No hard copy military medical records were provided for review. No civilianmedical records were provided for review. h.After reviewing the currently available documentation and, in accordance with the 3 September 2014 Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder, it is the opinion of the ARBA psychiatrist that there is insufficient evidence to support that the applicant’s contention that his misconduct was due to mental health reasons. i.In accordance with the 3 September 2014 Secretary of Defense Liberal GuidanceMemorandum, the applicant’s military records DO NOT support the existence of post-traumatic stress disorder (PTSD) or any other behavioral health condition at the time of discharge. j.The applicant’s military records indicate that the applicant DID meet medicalretention standards in accordance with Army Regulation 40-501. The applicant had no mitigating mental health conditions at the time of his discharge from the Army. 12.A copy of the advisory opinion was sent to the applicant on 13 September 2018 andhe was afforded the opportunity to provide comments. He responded on 18 September2018, stating: a.He never claimed to suffer from anything regarding mental health. He was justgoing through a lot of emotion things that he guesses got the best of his better judgement. b.It threw him at first when he heard the news that his dad had gone away for good,but when it came down to going to the funeral, his wife would not leave to come home with him for it. Then he knew things weren’t solid between them because she did not come to help him deal with his father’s death or attend the funeral. It was very hurtful, but God saw him through. c.When he came back to no support, no kindness at all, and she started staying outthe entire weekend all the time, so his command sent her home from Europe. He really missed his babies, God knows, but he held up for a long time. When he left Europe and was assigned stateside, the Army did not seem the same. There was no respect for your rank or years of service. d.When he read about disobeying officers and noncommissioned officers, and thedocuments said he was derelict in his duties, he wondered by they would say all those negative things instead of trying to help him. And all those so-called “disobeying orders” is just playing with words. How could he be there and disobeying orders if he was AWOL? e.He was one hell of a Soldier. He won guard mount almost every time he drewguard duty, supernumerary, or Colonel’s orderly, best looking uniform and more. He had letters of accommodation, won “super jock”, was squad leader, and he was in 9 years strong. If he was not Army material, do you seriously think it would have taken 9 years and 6 months to find out he was not good for the Army? He served his country honorably for 6 out of 9 years and if he would have gotten a helping hand instead of a foot out the door he would be retired with honor. f.He never claimed mental illness. His command put him in that ward for crazypeople and he didn’t ask to go, that’s why he left. All he needed was some understanding. He wonders how they would handle losing their father and their wife staying with another man and refuse to attend his funeral with them. He can’t say what he did once he left that ward because he can’t remember. He just doesn’t know what makes a Solder after 9 years of dedicated service just say nothing and walk away from it all like it never meant nothing to him at all. g.All he ever wanted to be was a Soldier and he remember Colonel G____, MasterSergeant B____, and Staff Sergeant T____ telling him he would be an outstanding Soldier and it was just like he said, he just needed a helping hand instead of a foot out. No matter what the Board decides, he ‘ll always be proud of his service to his country. 13.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberalconsideration to veterans petitioning for discharge relief when the application for relief isbased, in whole or in part, on those conditions or experiences. 14.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. BCM/NRs 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 a discharge, whichmay be warranted on equity or relief from injustice grounds. This guidance does notmandate relief, but rather provides standards and principles to guide BCM/NRs inapplication of their equitable relief authority. In determining whether to grant relief onthe basis of equity, injustice, or clemency grounds, BCM/NRs shall consider theprospect for rehabilitation, external evidence, sworn testimony, policy changes, relativeseverity of misconduct, mental and behavioral health conditions, official governmentalacknowledgement that a relevant error or injustice was committed, and uniformity ofpunishment. 15.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel. Chapter 10 provides that amember who had committed an offense or offenses for which the authorized sentenceincluded a punitive discharge could submit a request for discharge for the good of theservice in lieu of trial by court-martial. The request could be submitted at any time aftercharges were preferred. Although an honorable or general discharge could be directed,an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 16.Army Regulation 635-5 (Separation Documents), in effect at the time, providedguidance for the preparation of the DD Form 214. It states a DD Form 214 will not beprepared for enlisted Soldiers discharged for immediate reenlistment in the RegularArmy. Enter in item 18 (Remarks) a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210-791001; 791002-821001 17.Army Regulation 635-8 (Separation Processing and Documents), currently in effect,prescribes policy and procedural guidance relative to transition management, to includethe preparation of the DD Form 214. Its states: a.DD Form 214 will not be prepared for Soldiers discharged for immediatereenlistment in the Regular Army. b.For enlisted Soldiers with more than one enlistment period during the timecovered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c.For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The board found that based upon the multiple occasions of misconduct over an extended period of time, the characterization of service received at the time of discharge was appropriate. Therefore, 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: 1.The evidence presented does not demonstrate the existence of a probable error orinjustice. Therefore, the Board determined the overall merits of this case are insufficientas a basis for correction of the records of the individual concerned. 2.However, prior to closing the case, the Board noted the administrative note belowfrom the analyst of record and recommended that change be made to more accuratelydepict the military service of the applicant. Microsoft Office Signature Line... 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): The Remarks section of the applicant’s DD Form 214 shows: //Immediate reenlistments this period: 780620-820323; 820324-861112//. It does not state his continuous period of honorable active service, as that was not the DD Form 214 preparation standard at the time of his discharge. REFERENCES: 1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberalconsideration to veterans petitioning for discharge relief when the application for relief isbased, in whole or in part, on those conditions or experiences. The guidance furtherdescribes evidence sources and criteria and requires boards to consider the conditionsor experiences presented in evidence as potential mitigation for misconduct that led tothe discharge. 3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. BCM/NRs 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 a discharge, whichmay be warranted on equity or relief from injustice grounds. This guidance does notmandate relief, but rather provides standards and principles to guide BCM/NRs inapplication of their equitable relief authority. In determining whether to grant relief onthe basis of equity, injustice, or clemency grounds, BCM/NRs shall consider theprospect for rehabilitation, external evidence, sworn testimony, policy changes, relativeseverity of misconduct, mental and behavioral health conditions, official governmentalacknowledgement that a relevant error or injustice was committed, and uniformity ofpunishment. Changes to the narrative reason for discharge and/or an upgradedcharacter of service granted solely on equity, injustice, or clemency grounds normallyshould not result in separation pay, retroactive promotions, and payment of pastmedical expenses or similar benefits that might have been received if the originaldischarge had been for the revised reason or had the upgraded servicecharacterization. 4.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forththe basic authority for the separation of enlisted personnel. a.Chapter 10 provides that a member who had committed an offense or offenses forwhich the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.A discharge UOTHC is an administrative separation from the service underconditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 5.Army Regulation 635-5 (Separation Documents), in effect at the time, providedguidance for the preparation of the DD Form 214. It states: a.A DD Form 214 will not be prepared for enlisted Soldiers discharged forimmediate reenlistment in the Regular Army. b.Enter in item 18 (Remarks) a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210-791001; 791002-821001 6.Army Regulation 635-8 (Separation Processing and Documents), currently in effect,prescribes policy and procedural guidance relative to transition management, to includethe preparation of the DD Form 214. Its states: a.A DD Form 214 will not be prepared for Soldiers discharged for immediatereenlistment in the Regular Army. b.For enlisted Soldiers with more than one enlistment period during the timecovered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c.For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above.