ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 January 2020 DOCKET NUMBER: AR20160016111 APPLICANT REQUESTS: an upgrade of his discharge and correction of his records to show he was retired APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Letter from the Department of Veterans Affairs (VA) * VA rating Decision 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 (ABCMR) 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 wants the Separation Authority changed to retired as he went before the VA review board in Huntington, WV, and they awarded him time for retirement, so he could receive a pension. He is also requesting an upgrade of his under honorable conditions discharge (general) to fully honorable. When he submitted his petition to the review board in November 1999, he overlooked what the VA had done for him concerning awarding him the time to draw retirement. He is now rated at 100% disabled due to his military service. He is honoring a promise to his wife, who passed away, that he would correct his DD Form 214 (Certificate of Release or Discharge from Active Duty). He provides a letter from the VA as well as his VA rating decision. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 27 November 1977. He reenlisted on 27 May 1981, 12 February 1987, 10 August 1989, and 7 May 1992. b. On 30 July 1995, he departed his unit in an absent without leave (AWOL) status and on 29 August 1995, he was dropped from the rolls as a deserter. He ultimately returned to military control on 21 February 1996. c. On 27 February 1996, court-martial charges were preferred against the applicant for one specification of AWOL from 30 July 1995 to 21 February 1996. d. On 27 February 1996, the applicant consulted with legal counsel who advised him of his rights. Following consultation with legal counsel, he requested discharge under the provisions 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 indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service e. Consistent with the chain of command recommendations and following a legal review for legal sufficiency, on 5 April 1996, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. f. On 16 January 1996, he was discharged from active duty. His DD Form 214 show she was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions discharge. It also shows he completed 18 years and 27 days of active service and he had lost time from 30 July 1995 to 20 February 1996. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (2nd Oak Leaf Cluster) * Army Good Conduct Medal (5th Award) * National Defense Service Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Expert Marksmanship Qualification Badge with Rifle and Grenade Bars * Sharpshooter Marksmanship Qualification badge with Pistol bar * U.S. Army Gold Recruiter Badge with 3 Sapphire Achievement Stars * Driver and Mechanic Badge g. On 18 February 2000, following a review by the Army Discharge Review Board (ADRB), the ADRB determined his discharge was proper but inequitable. As a result, the ADRB voted to upgrade his discharge to general, under honorable conditions. The ADRB also considered the reason for his separation but voted not to change it. h. His original DD Form 214 was revoked and he was reissued a new DD Form 214 that shows his general, under honorable conditions characterization of service. This DD Form 214 further shows in: * Block 25 (Separation Authority), AR 635-200, chapter 10 * Block 26 (Separation Code), KFS * Block 28 (Narrative Reason for Separation), In Lieu of Trial by Court-Martial 4. The Army Review Boards Agency medical advisor reviewed case for medical conditions that allegedly warranted separation through medical channels; and/or evidence of a medical disability or condition which would support a change or reason for the discharge in this case. The medical advisory rendered an advisory opinion on 25 November 2019 and stated: a. The available record are insufficient to determine whether PTSD or another boardable behavioral health (BH) condition(s) existed at the time of the applicant’s military service. It is clear the applicant was under a significant stress (care of ill wife and 2 small children and demands of military service obligation), but a discharge mental status examination is not available for review. b. It is unknown if a BH condition was present at the time of misconduct. Available records are insufficient to determine whether the applicate met or failed medical retention standards IAW (in accordance with) Army Regulation (AR) 40-501 (Standards of Medical Fitness), warranting a separation through medical channels for the medical conditions for which he is now service connected. There are no in-service treatment records available for review (although they apparently exist or existed) and a medical examination at the time of discharge is not available for review. c. The summary of in service notes detailed above suggests the applicant met retention standards. e. It is unknown if the applicant’s medical conditions were duly considered during medical separation processing but the presumption in these situations is that Army regulations were followed and the discharge was proper and equitable. f. That having been stated, the previous Board determined the initial characterization of service was too harsh given the applicant’s family circumstances at the time and the unblemished military record prior to; and upgraded the character of service from Under Other Than Honorable Conditions to Under Honorable Conditions (General). g. Upon review, there is insufficient available medical information pertaining to the applicant to recommend for or against a change in discharge character and/or type of separation. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or provide comments. The applicant did not respond. 6. By regulation (AR 635-200), 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. A discharge under other than honorable conditions is normally considered appropriate. 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 found relief was not warranted. Based upon the lengthy period of AWOL and the applicant’s characterization of service already being upgraded by the ADRB, the Board concluded that the current characterization of service was appropriate. Additionally, the Board found insufficient evidence show why the narrative reason should be changed to Retirement. The Board wished to inform the applicant that VA ratings do not have any impact on whether DoD would award the same ratings. Therefore, the Board concluded there was insufficient evidence to show the narrative reason should be changed. However, the Board did note the administrative note below from the analyst of record and recommended that change be completed to more accurately reflect the military service of the applicant. 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: 1. 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. 2. Prior to closing the case, the Board did note the administrative note below from the analyst of record and recommended that change be completed to more accurately reflect the military service of the applicant. 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): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 19771123-19920506.” 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides 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. b. Paragraph 3-7a of the regulation currently in effect 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. c. Paragraph 3-7b of the regulation currently in effect 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. 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, 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. 4. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160016111 5 1