ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  11 April 2019

	DOCKET NUMBER:  AR20160016235


APPLICANT REQUESTS:  request an upgrade of his general, under other than 
honorable conditions discharge (GD) to fully honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:           
DD Form 149 (Application for Correction of Military Record)

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 had an honorable discharge and a GD.  He needs an 
honorable discharge for insurance purposes.  He has been a credit to society for 40 
years and should be able to have his discharge changed.  When he was a 
noncommissioned officer (NCO) at Fort Carson, CO he had many conflicts with other 
NCOs in his company.  He went to sick call on many occasions.  His mental state of 
mind was completely distracted.  He’s been a good citizen and has worked all his life. 

3.  He accepted non-judicial punishment on the following occasions:

*	21 April 1981, for failing to go to his appointed place of duty 
*	27 July 1981, for being absent without authority from his unit 
*	11 September 1981, for being absent from his appointed place of duty 

4.  On 1 December 1981, the applicant's commander notified the applicant of his intent 
to  recommended his separation from the Army under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for apathy.  The 
applicant acknowledged receipt.  

5.  The applicant consulted with legal counsel and was advised of the basis for the 
contemplated action to separate him for unsatisfactory performance under the 
provisions of Army Regulation AR 635-200, Chapter 13, and its effects, of the rights 
available to him, and the effect of any action taken by him in waiving his rights.  He 
waived consideration of his case by a board, waived personal appearance before a 
board of officers, and did not submit statements in his own behalf.

6.  On 11 December 1981, an authorized official approved the recommendation for 
separation under the provisions of Army Regulation 635-200, chapter 13, and directed 
the issuance of a general discharge.  
7.  There is no evidence indicating the applicant applied to the Army Discharge Review 
Board for an upgrade of his discharge.  

9.  On 12 March 2019, the ABCMR obtained an advisory opinion from a Clinical 
Psychologist/Medical Advisor with Army Review Boards Agency (ARBA), who states, in 
part, based on a thorough review of available medical records, there is a lack of 
information to determine if a mental disorder existed during the applicant's period of 
service.  Although evidence of depressive symptoms is noted, due to a lack of military 
and medical information, there is insufficient evidence to determine if a behavioral 
health condition existed at the time of service and contributed to the misconduct that led 
to the applicant's separation from Active Duty.  A copy of the complete medical advisory 
was provided to the Board for their review and consideration.

10.  On 15 March 2019, the applicant was provided a copy of the advisory opinion for 
comment or rebuttal.  He did not respond. 

11.  Army Regulation 635-200 sets forth the requirements and procedures for 
administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the 
time provided for separation due to inaptitude, personality disorder, apathy, and 
homosexuality (tendencies, desires, or interest but without overt homosexual acts).  

12.  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.

13.  In reaching its determination, the Board can consider the applicant's petition, his 
statements, letter of support, 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 there is 
insufficient evidence to grant relief.  The applicant’s contentions, medical concerns, and 
the medical advisory were carefully considered.  The medical advisory official 
determined there were no mitigating factors 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.  He did not provide letters of support nor 
evidence of post-service achievement for the Board’s consideration.

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.



ADMINISTRATIVE NOTE(S):

Not Applicable

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. Chapter 13 of the regulation in effect at the time provided for separation due to 
inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or 
interest but without overt homosexual acts).  The regulation required that separation action 
would be taken when, in the commander’s judgment, the individual would not develop 
sufficiently to participate satisfactorily in further military training and/or become a 
satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this 
regulation was characterized as honorable or under honorable conditions.

	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 Soldiers whose military 
record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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)	 AR20160016235
	
2

1