ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20160015847


APPLICANT REQUESTS:  Reconsideration of his previous requests for an upgrade of his under other than honorable conditions discharge to under honorable conditions (general).  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* self-authored statement, dated 12 January 2017men 
* DA Form 3822 (Report of Mental Status Evaluation)
* psychological evaluation, dated 22 June 1993 (pages 1,10-13)
* psychological evaluation, dated 1 April 1995 (pages 1,14-22)
* Superior Court of the State of California for the County of San Bernardino Court Transcript, dated 24 April 1995 (The People of the State of California vs Applicant)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140000557 on 8 October 2014 and in Docket Number AR20150006847 on 17 March 2016.

2.  The applicant states:

	a.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) states a mental evaluation is required for discharge under the provisions of chapter 14.  His diagnosed mental condition was not presented to the board as a direct or substantial cause for the misconduct that led to his discharge.

	b.  He was unaware of records describing his mental status at the time of the board and under lawyers control, who presented evidence to the courts, but failed to deliver evidence to the discharge board.  
	c.  His military report of mental evaluation states the doctor was unable to evaluate his insanity at the time of the crime.  On 22 June Dr. F performed a psychological evaluation which revealed a diagnosis of psychotic, bipolar, and likely suffering from schizophrenia.  This was verified by multiple psychological test which he submits to the board for consideration.  This mental disease/defect was the primary cause on his conduct which resulted in his discharge.  He does not believe it is customary for the military to punish a mental defect with an other than honorable discharge which was overlooked by lawyers who failed to present this evidence to the board.  

3.  The applicant enlisted in the Regular Army on 23 February 1988 for a period of four years.  

4.  In the applicant's previous Records of Proceedings, it was noted that:

	a.  He was arrested by civil authorities on 6 May 1991 as a suspect in a murder.  He was confined and subsequently charged with murder.

	b.  A Standard Form 88 (Report of Medical Examination) shows he underwent a separation examination on 16 November 1993 and was found qualified for separation.  

	c.  The applicant was notified by his commander on 20 March 1994 that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, due to commission of a serious offense.  His commander cited charges in a civilian court for murder as the basis for the recommendation.  The applicant acknowledged receipt of the notification and after consulting with counsel, elected to have his case considered by an administrative separation board.

	d.  An administrative separation board convened on 13 May 1994.  The board found the allegation of murder was supported by a preponderance of the evidence and recommended the applicant's discharge from the service with a characterization of service of under other than honorable conditions.

	e.  The separation authority approved the recommendation for discharge.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 16 June 1994, under the provision of Army Regulation 635-200, chapter 14-12c, due to misconduct with his service characterized as under other than honorable conditions.

5.  On 13 September 2018, the Army Review Boards Agency psychiatrist/medical advisor provided an advisory opinion.  The advisory found the available documentation showed the applicant met medical retention standards and there was no indication for physical disability evaluation system processing.  The advisory also found that the applicant’s military records do not support the existence of any behavioral health condition which is mitigating for his misconduct.  A copy of the complete medical advisory was provided to the Board for their review and consideration.
6.  The applicant was provided a copy of the advisory opinion on 17 September 2018 and given an opportunity to submit comments.  However, a search of the internet revealed he died in prison in August 2017.  
BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.  There was no evidence provided that shows he was diagnosed with a medical condition during his period of service that may have contributed to his 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 AR20140000557 on 8 October 2014 and in Docket Number AR 20150006847 on 17 March 2016.


	 
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):

Not Applicable


REFERENCES:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7b states 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.

2.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160015847


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