ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160016044 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) * Applicants statement * Daughter’s letter 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 joined the Army in October of 1977 and was discharged a year later. He was stationed in Fort Hood, Texas and his grandmother died, so he wanted to attend the funeral. His grandmother was the most important person in his life and he went through a state of depression and he never returned back to his unit. He realizes now that he was young and should have made better decisions. He would greatly appreciate if the Board would consider giving him an upgrade from his other than honorable to general discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 12 October 1977. b. He served at Fort Hood, Texas from 5 April 1978 to 22 June 1978. c. The facts and circumstances surrounding the applicant’s court-martial and a. subsequent separation are not available for the Board to review. However, his record contains a DD Form 214, which outlines his reason for separation. d. The applicant was discharged on 14 October 1978 with an under other than honorable conditions discharge. His DD Form 214 shows he completed 8 months and 25 days of active service with 100 days of lost time. * Item26 (Decorations, Medals, Badges, Citations and Campaigns Awarded or Authorized), Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal, Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * item e (Separation Authority), AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service) * item c (Narrative Reason for Separation), For the Good of the Service in Lieu of Court-Martial 4. An advisory opinion was received from the Army Review Boards Agency on 14 February 2019 in the processing of this case. The medical advisor/psychologist states: a. Behavioral health conditions were not present at the time of misconduct and were not mitigating for the misconduct. There is insufficient information about the nature of his misconduct when in the Army, making it impossible for the psychologist to determine what he is being asked to mitigate. b. The applicant met medical retention standards in accordance with chapter 3, AR 40-501 and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. c. His medical conditions were duly considered during medical separation processing. d. Based on the information available for review, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 5. The applicant was provided with a copy of this advisory to give him an opportunity to submit a response. He did not respond. 6. By regulation: a. A member who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge certificate is normally appropriate for a member who is discharge for the good of the service. a. b. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, grade, rank, or rating. c. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except “Honorable,” the following statement will appear as the first entry in block 18, “Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001),” then enter the specific periods of reenlistments. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior to the misconduct, as well as the medical advisory’s finding that the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army, 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. 0 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted members. a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) of this regulation states a member who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, or where required, after referral, until final action by the court-martial convening authority. An under other than honorable discharge certificate is normally appropriate for a member who is discharged for the good of the service. However, the separation authority may direct a general discharge certificate, if such is merited by the member’s overall record during the current enlistment. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provides the policies and procedures for processing cases of members who may be unfit because of physical disability. Paragraph 2-1 (Standards of unfitness because of physical disability) states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, grade, rank, or rating. 4. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribes policy and gives guidance for the completion of the DD Form 214. It states, in pertinent part for Item 18 (Remarks), enter a list of enlistment periods for which a 1. DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210- 791001; 791002-821001. 5. AR 635-5, in effect after his discharge, stated that the first entry in block 18 lists reenlistment periods for which a DD Form 214 was not issued, if applicable, e.g., "Immediate reenlistments this period: 761218-791001; 791002-821001." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001)"; then enter the specific periods of reenlistments as prescribed above. 6. 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. 7. 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; 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 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 that misconduct which led to the discharge. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 8. 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 1. 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.