ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20160015910 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade to his under other than honorable conditions discharge to general. 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) * Self-authored statement * Letters of support from spouse and mother * The Permanente Medical Group, Psychiatry Department verification letter * Red Metric Law Letter of recommendation FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130022092 on 26 August 2014. 2. The applicant states, in effect, he did two terms of enlistment. He completed the first term of three years and a year and a half of the second term, which was a three-year commitment. 3. The applicant provides: a. Self-authored statement (1) The applicant chronicles his upbringing in a single parent household with four children, the struggles he encountered when searching for a job, and being on his own at the young age of 21. Feeling obligated to help out his family, he chose to enlist in the U.S. Army. Prior to leaving for basic training in Fort Leonard Wood, he started out as a hometown recruiter. He was disappointed with the enlistment; however, he continued to train with some difficulty and bad behavior. He got married prior to leaving for Germany. Missing his wife and family, going on alerts, and not knowing what was going on led him to start drinking heavy and using drug like liquid speed with alcohol just to maintain. He was gone emotionally, losing it. As time passed, it became strenuous on both him and his wife. He experienced months of being short at, returning fire, alerts, and guard duty. His wife eventually filed for divorce. (2) He was reassigned to Fort Ord, CA where he thought it would be a little bit easier for him. Instead, he states that Fort Ord was the wrong place for him. He acknowledges that he made his share of mistakes and the fact that he did not think about the consequences of his actions. (3) He lost his hearing and he believes, as a result of his military experience, he has post-traumatic stress disorder (PTSD). a. Letter of support from his current spouse describes the applicant as being a good man, very hard worker who takes his job seriously, is always on time, and is a very generous person. And although he is not perfect, he loves her, his children, mother, and siblings with all his heart. He is a church going man, who extends his compassion to those less fortunate. She loves her husband and states that he deserves to receive compensation for his time in the Army so that he may continue to bless others. b. Letter of support from his mother, states she notices a tremendous change in her son. He has become a reliable person, very dedicated to his family and is a very hard worker. She's been able to depend on him for anything she needs. c. Letter of support from a friend who states she has known the applicant all of her life and can honestly say that he is a very responsible and hard worker. He is dependable and can be characterized as "humble." d. The Permanente Medical Group Verification letter, dated 22 August 2018, from a psychologist who verifies that the applicant was evaluated for psychological services, which involve trauma-informed individual and group psychotherapy. e. Letter of Recommendation, dated 18 August 2016, from a principal of a law firm. He states he has known the applicant for over a year, but has spent much of his time with him discussing legal issues, life principles, and general ideas. He is a good man who is dedicated to his wife, his community, and to being a positive human being. 4. Review of his service records show: a. He enlisted in the Regular Army on 16 January 1978. b. He accepted nonjudicial punishment (NJP) on 28 April 1980 for: * failing to go, at the time prescribed, to his appointed place of duty on 14 March 1980 and 27 March 1980 * wrongfully urinating in a trash can on 30 March 1980 c. His duty status changed as follows: * Present for Duty (PDY) to absent without leave (AWOL), effective 25 April 1980 * AWOL to dropped from rolls (DFR), effective 26 May 1982 * DFR to PDY, effective 5 October 1982 d. On 13 October 1982, court-martial charges were preferred against the applicant for one specification of absenting himself, without authority, from his organization on or about 25 April 1982 until 5 October 1982. e. On 13 October 1982, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an under other than honorable conditions discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf; he did not submit any statements f. On 1 December 1982, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be discharged under other than honorable conditions. g. The applicant was discharged from the Army on 16 December 1982. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service, and his service was characterized as under other than honorable conditions. He completed 4 years, 5 months, and 18 days of active service and he had lost time from 25 April 1982 to 4 October 1982. 5. On 8 February 2018, the Army Review Boards Clinical Psychologist, was asked to determine if there is a nexus between the information/diagnoses contained in the documentation and the misconduct that resulted in the applicant's discharge. Based on the information provided by the Board and review of available records, there is insufficient documentation that the applicant’s post-traumatic stress disorder (PTSD) diagnosis is related to military service. Without clarification, it is possible his PTSD is related to post-service events which would not mitigate for the misconduct and basis for separation. 6. By regulation, a member who has committed an offense 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 7. The Board should consider the applicant's submissions 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 relieve was warranted. Based upon the type of misconduct and the demonstrated growth through the letters from family in friends provided by the applicant, the Board concluded that upgrading the discharge characterization to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits 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. b. Paragraph 3-7b provides that 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. c. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which 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 based on 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) AR20160015910 5 1