ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IX BOARD DATE: 16 April 2019 DOCKET NUMBER: AR20160016287 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to honorable or to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Discharge Summaries and Progress Notes (55 pages) 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 that after returning from serving in combat in Iraq, he went absent without leave (AWOL). He believes the reason for his AWOL is because he was suffering from post-traumatic stress disorder (PTSD). 3. The applicant enlisted in the Regular Army on 28 March 1989. His record shows he served in Southwest Asia in support of Operations Desert Shield and Desert Storm from 21 December 1990 to 29 April 1991. 4. A DA Form 4187 (Personnel Action) shows he departed AWOL on 19 May 1992. A second DA Form 4187 shows he was apprehended by civilian authorities and returned to military control on 4 February 1993. 5. On 10 February 1993, court-martial charges were preferred against the applicant based on his AWOL offense. 6. On 10 February 1993, the applicant consulted with legal 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 (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court- martial. a. The applicant acknowledged in his request he understood the elements of the offenses charged and that he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged. He was advised of: * the nature of his rights under the UCMJ * the elements of the offenses with which he was charged * any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty * the possible defenses which appeared to be available b. The applicant further acknowledged he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge. 7. The separation authority approved the applicant's request for discharge on 11 March 1993 and directed the issuance of an under other than honorable conditions discharge. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 March 1993 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. It further shows his service was characterized as under other than honorable conditions. 9. There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 10. On 26 February 2019, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The advisory found the applicant was diagnosed by the VA with combat-related PTSD. Given the nexus between PTSD and avoidance behavior, as well as the AWOL occurring after deployment, it is more likely than not combat-related PTSD contributed to his AWOL; the basis for separation is mitigated. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 20 March 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions and the medical advisory were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. One year after returning from a deployment to the Gulf War, the applicant went AWOL and was dropped from the roles. He was apprehended and returned to military control after being in an AWOL status for approximately 10 months. He contends he went AWOL because of PTSD. The advisory official noted avoidance could be a symptom of PTSD, which mitigates his AWOL. The Board agreed the misconduct does not warrant an upgrade to an honorable discharge; however, an under honorable conditions characterization is appropriate based upon the recommendation of the advisory official. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 showing his characterization of service as under honorable conditions (general). 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 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 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 to 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 DRBs 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) AR20160016287 4 1