ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20160016293


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* documents from the Department of Veterans Affairs (VA)
* DD Form 214
* self-authored statement
* letter of support
* diploma
* GD Certificate
* documents from service 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:

     a.  His discharge was unfair.  He put in leave because his wife was pregnant and was diagnosed with an illness.  He was informed either his wife or unborn child would not survive.  His sergeant (SGT) denied his leave request.  When he questioned why his leave request was denied, he was placed on extra duty, given non-judicial punishment, and confined to the barracks.  His SGT was out to get him and every time he had an opportunity to do so he would.  All of his disciplinary issues were with SGT M.  He was stressed and worried about his wife because she went back to Toledo.  When he found a chance to leave, he took it; however, he came back to face his punishment.  He was offered a discharge and he took it because he was tired of being on extra duty.  He did not realize it would affect the rest of his life.  He obtained a Medical Assistance Certificate but he could not get a job due to a lack of experience. 
     b.  He is a hardworking and honest man.  He gave 100 percent while he was in the Army and wanted to retire.  He joined the Army in order to support his family.  He was married with two daughters and his wife was pregnant with his son, who was born the same year he was discharged.  After he was discharged, he could not receive unemployment benefits or use his educational benefits.  He started working as a Nursing Assistant and continues to work as a Nursing Assistant.  He is facing a lot of medical problems.  He is a man of God and a good citizen.  He deserves better than what he has.
   
3.  On 27 December 1991, the applicant accepted non-judicial punishment for being disrespectful in language.

4.  On 25 June 1992, the applicant was charged with being absent from his unit without authority and two charges of failing to go to his appointed place of duty at the prescribed time.

5.  The applicant’s complete separation packet is not available for review; however, his DD Form 214 shows he was discharged on 10 September 1992, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, paragraph 14-12b (Misconduct-Patterns of Misconduct).  His service was characterized as UOTHC: however, the applicant provide a GD Certificate.

6.  The applicant provides a letter of support from his wife who states the applicant was shown an injustice from the military.  They were denied benefits they were entitled to and have suffered enough.  The applicant has maintained a job for 13 years and is a role model on his job.

7.  On 19 March 2019, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, based on a lack of military and medical information there is insufficient evidence to determine if a behavioral health condition 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.

8.  On 20 March 2019, the applicant was provided a copy of the medical advisory for comment or rebuttal.  He did not respond.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.
10.  In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found the relief was partially warranted.  The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and found that the seriousness of the misconduct was minor and non-violent and the applicant has shown rehabilitation, therefore a general discharge is warranted. 

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:

 1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 10 September 1992 to reflect a General, under honorable conditions character of service.
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to honorable.

  


	 
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.
	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation. 
	b.  Paragraph 3-7a provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

3.  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.

4.  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. 

5.  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.




ABCMR Record of Proceedings (cont)	 AR20160016293
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