ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20160016128 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC). 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) * self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. After his enlistment in November 1994, he successfully completed basic combat training and was given orders to be stationed at Fort Campbell, KY. He had spoken to his sergeant about having suicidal thoughts more often than usual after some months. He would just ignore him and tell him to “suck it up” and “drive on.” b. He started feeling depressed and anxious without any idea who he could talk to about it. Being young and ignorant, he decided to go absent without leave (AWOL), before doing something stupid or endangering the lives of his fellow Soldiers. c. He understands that we are young when we enlist and some have a stronger mindset than others, but everyone is different and handles things in a different way. He wishes he had never left and finished his time like he was supposed to. It is something he is not proud of and will regret for the rest of his life. He greatly respects the Board’s decision in this matter and thanks the Board for giving him the opportunity to share his information. 3. The applicant enlisted in the Regular Army on 2 November 1994. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was awarded the military occupational specialty (MOS) 11B (Infantryman) after completing the Army Infantryman Course in 1995. 4 A DD Form 458 (Charge Sheet) shows he was charged on 5 January 1996 with absenting himself from his unit without authority from on or about 30 May 1995 until on or about 5 January 1996. 5. An electronic DA Form 4187 (Personnel Action), dated 22 January 1996,shows his duty status was changed from AWOL/Dropped from Unit Rolls on 5 May 1995 to surrendered to military authority/returned to military control on 5 January 1996. 6. On 12 January 1996, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf and waived a separation medical examination. 7. On 12 March 1996, his immediate commander recommended approval of his request for discharge and recommended the issuance of a UOTHC Discharge Certificate. He stated the applicant had become disillusioned with the military and his retention is not in the best interest of the Army. 8. On 21 March 1996, the approval authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction in rank/grade to private/E-1 and the issuance of a UOTHC Discharge Certificate. 9. His DD Form 214 shows he was discharged on 23 April 1996 in lieu of trail by court-martial and his service was characterized as UOTHC. He completed 10 months and 11 days of active service during this period with lost time from 30 May 1995 through 5 January 1996. His DD Form 214 also reflects his MOS as 11B. 10. There is no evidence in his military records he was diagnosed with any physical or mental conditions during his service. 11. On 2 January 2019, the Army Review Boards Agency (ARBA) clinical psychologist/medical advisor provided an advisory opinion. The ARBA clinical psychologist concluded there is no evidence the applicant had a behavioral health condition that would mitigate the basis for his separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 9 January 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 23 January 2019, stating: a. Thank you for the opportunity to respond to the advisory opinion. He noticed it states his MOS was 11B, but his orders changed from Hawaii to duty at Fort Campbell, KY, which resulted in his MOS changing to 11C (Indirect Fire Infantryman). b. As he mentioned in his previous letter, he tried to seek help from Sergeant X____ at the time he started to feel the anxiety and suicidal thoughts, but his response was to “suck it up and drive on.” He then reached out to his mother in El Paso, TX, for advice. She advised him to “just come home and not to do anything stupid.” He didn’t seek help from the Department of Veterans Affairs (VA) because he feared what the consequences of being AWOL would be. If he had known at the time he was AWOL that he could have gone to seek help from the VA, he would have definitely asked for their assistance. Keep in mind that the service and opportunities available for service members back then cannot be compared to the services that are currently available. c. The day he turned himself in, he went to speak to an Army Chaplain to assist him in turning himself in to the Military Police. He was not put in handcuffs that day since he voluntarily surrendered. He regrets the decisions he made during his military career, but strongly believes had he not been AWOL he would have probably done something irreparable. d. Once he arrived at Fort Campbell, KY, his job changed, resulting in him having to carry a tremendous amount of weight with the 60 mm mortar gun, which weighs 80 pounds and the base plate tired up to his ruck sack was about 20 pounds. He had no training for this and was forced to learn along with having to walk day and night with such weight. His back and toenail fungi were also affected from the combat boots that he wore and the amount of weight he had to carry. e. He started losing interest and began having suicidal tendencies and desperation. After his military experience, he has never been able to recover his normalcy. Not only do his spouse and kids have to deal with his sudden mood swings, but his back and feet are a reminder of the pain he endured during his time as a Soldier. Regretfully he was not provided with the proper guidance or medical assistance and counseling. He assumed his part of the responsibility; however, he is not entirely to blame for his inability to succeed in his military career. He does not have any other type of medical evidence to present beyond his word, but he is hopeful the Board will consider changing the character of his discharge. 13. 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, 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. 14. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 15. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include DoD guidance concerning liberal consideration when considering discharge upgrades, the Board found that relief was not warranted. Based upon the short term of service completed prior to the misconduct and a lack of evidence presented by the applicant to show he has grown and learned from the events which caused the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 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. 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, 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. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. ABCMR Record of Proceedings (cont) AR20160016128 5 1