ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160015744 APPLICANT REQUESTS: An upgrade of his bad conduct discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he received a BCD because he was absent without leave (AWOL). He was young and did not know at the time that he had mental health issues. He has since been diagnosed with Schizophrenia. He served honorably until his mental health condition began to manifest. Although he was being treated while in the military, he did not feel he was receiving the treatment he needed, so he impulsively went AWOL. This was one of the worst decisions of his life. He has a number of medical issues that began while he was on active duty. However, due to his discharge he is not eligible for medical care or benefits from the Department of Veterans Affairs (VA). He is homeless and currently dealing with these medical and mental health issues. He is requesting an upgrade of his BCD in order to receive the help he needs and to become a contributing member of society. 3. A review of the applicant’s record shows: a. He enlisted in the Regular Army (RA) on 4 September 1986. At the time of his enlistment, he was 19 years and 9 months of age. He was awarded and held military occupational specialty 11B (Infantryman). b. He reenlisted in the RA on 13 March 1989. a. c. On 12 November 1991, he was convicted by a general court-martial of desertion with intent to shirk important service. His punishment consisted of a reduction to pay grade E-1, a forfeiture of all pay and allowances, and a bad conduct discharge. d. On 5 February 1992, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. e. On 4 June 1992, The U.S. Army Military Court of Military Review affirmed the findings of guilty and the sentence. f. Orders Number 080-13, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 17 May 1993, announced his discharge from the RA on 28 May 1993, under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) and the issuance of a bad conduct discharge. g. On 28 May 1993, he was issued a memorandum advising him of his separation pursuant to general court-martial orders and providing him a DD Form 214. i. He was discharged on 28 May 1993. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with AR 635-200, paragraph 3-10, with a bad conduct discharge. He completed 4 years and 12 day of net active service, with time lost from 16 September 1990 to 12 March 1993. His DD Form 214 also shows he was awarded or authorized the: * Good Conduct Medal * National Defense Service Medal * Army Achievement Medal with 2nd Oak Leaf Cluster * Army Service Ribbon * Air Assault Badge j. His DD Form 214 further contains the statements “Continuous Honorable Active Service From: 860904-900915//Immediate reenlistments this period: 860904-890312.” k. General Court-Martial Order Number 177, issued by Headquarters, U.S. Disciplinary Barracks on 20 June 1994, shows that after completion of all required post- trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. 4. An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 18 February 2019, in the processing of this case. The psychologist reviewed the record for medical condition(s) not considered during the medical separation process, specifically, available records supporting post-traumatic stress disorder or another boardable behavioral health condition existing at the time of 1. the applicant’s military service. She stated that in accordance with the Secretary of Defense memorandum, dated 3 September 2014, the applicant’s military records did not support the existence of Schizophrenia or any other boardable mental health condition at the time of his discharge. The applicant’s military records indicate that he did meet medical retention standards in accordance with AR 401-50 (Standards of Medical Fitness). No mitigating factors were identified in the applicant’s available military records. 5. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 6. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 7. 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 documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that based upon the misconduct and the medical advisory finding that there was insufficient evidence to support the applicant’s contention that his misconduct was due to Schizophrenia, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/21/2019 X CHAIRPERSON Signed by: 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provided for the separation of enlisted personnel: a. Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitles 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 be clearly inappropriate. b. Paragraph 3-7b provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c stated a discharge under other than honorable conditions was an administrative separation from the service under conditions other than honorable. It could be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 stated a member would be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 1. 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.