ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20160015914 APPLICANT REQUESTS: reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * letter from Grady Behavioral Health Center 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 AR20130016264 on 3 June 2014. 2. The applicant states: a. It was said he was drunk on duty as the motor pool guard, failed to go to appointed place of duty at prescribed time, was disrespectful to a superior officer, was found asleep at his guard post and appeared to be intoxicated. He was taken to the PMC for a field sobriety test and released. When they said he was drunk on duty, he asked for a field sobriety test; however, they would not give it to him. When he failed to report at the prescribed time, he lived off post and was homesick but he called in. He has hypertension and it gets very high at times. The doctor was giving him prescriptions drugs which made him sick. When it was said he was disrespectful, they could not tell him what he had said that was disrespectful. b. Prior to military service he was in college at Indiana State, but he was drinking alcohol too much and was asked to leave the school. He could not seem to stop drinking and in the Army the drinking age was 18. He is an alcoholic and needs help. He did not receive any treatment; however, he has been alcohol free for six years. He had been diagnosed with bipolar I disorder. 3. The applicant accepted nonjudicial punishment on the following occasions: * 8 August 1977, for being found drunk while on duty * 20 April 1978, for failing to go at the time prescribed to his appointed place of duty and being disrespectful to a superior commissioned officer. 4. On 15 May 1978, court-martial charges were preferred against the applicant for: * three specifications of failing to go to appointed place of duty at prescribed time * two specifications of being absent without authority * two specification of being disrespectful * one specification of failure to obey lawful command 5. On 14 June 1978, additional court-martial charges were preferred against the applicant for: * one specification of being found sleeping upon his post * one specification of being found drunk upon his post * two specifications of willfully disobeying orders 6. On 20 June 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. He was advised of his rights and elected to submit a statement on his own behalf. 7. In his statement, he stated that he had had numerous problems with his chain of command and that his wife had been sick but no one would give him time off to take her to the hospital. He added that he had had personality conflicts with his chain of command and he had no desire to be rehabilitated or to stay in the Army. 8. His intermediate and senior commanders recommended approval with the issuance of an under other than honorable discharge. 9. On 26 June 1978, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 10. On 5 July 1978, the applicant was accordingly discharged. The DD Form 214 (Report of Separation or Record of Service) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with an under other than honorable discharge. This form further shows he completed 1 year, 5 months, and 19 days of active service during this period. 11. On 3 June 2014, the ABCMR denied his request for an upgrade of his UOTHC discharge. 12. The applicant provides a statement from the Grady Behavioral Health Center, dated 18 July 2016, which states the applicant has been diagnosed with bipolar I disorder. 13. On 13 February 2019, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) Psychologist, who states based on a thorough review of available records, although it is possible the applicant’s behavioral health condition/s contributed to the basis for separation, there is insufficient documentation to make a determination at this time. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. On 20 March 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to respond. He did not respond. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 16. 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 UOTHC 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. 17. In reaching its determination, the Board can consider the applicant's petition, his statements, and medical/service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there was insufficient information to show mitigating factors contributed to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. 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. 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 AR20130016264 on 3 June 2014. 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. 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, an undesirable discharge was considered appropriate at the time. 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. 2. 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 UOTHC 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. 3. 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; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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 misconduct that led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20160015914 0 4 1