ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20160016588


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

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 was suffering from post-traumatic stress disorder (PTSD) at the time of his infraction.

3.  The applicant was counseled multiple times for indebtedness, dishonored checks, failure to attend budget counseling, and once for failure to follow instructions.  

4.  On 2 March 1988, the applicant’s commander recommended he be barred from reenlistment.

5.  On 14 May 1988, the applicant underwent a mental evaluation.  It was noted the applicant exhibited normal behavior, was fully alert and oriented, had unremarkable mood, clear thought content and good memory.  The applicant was determined to have the mental capacity to understand and participate in proceedings, was mentally responsible and met retention standards.

6.  On 7 September 1988, the applicant accepted non-judicial punishment for being absent from his unit from on or about 12 August 1988 to on or about 29 August 1988.

7.  The applicant’s complete separation packet is not available for review; however, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which show he was discharged on 9 December 1988, under the provisions of Army Regulation 635-200, chapter 14 (Personnel Separations – Enlisted Personnel), due to misconduct-commission of a serious offense.  He completed 7 years, 2 months, and 27 days of net active service this period.  His service was characterized as UOTHC.

8.  There is no evidence in the applicant’s available medical records of any behavioral health diagnoses or condition which would indicate he failed to meet retention standards.

9.  On 22 January 1990, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

10.  On 7 March 2019, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) Psychologist, who states based on the available information there is no evidence to support the applicant’s contention that PTSD was a mitigating factor for his misconduct.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

11.  On 7 September 2018, the applicant was provided a copy of the advisory opinion and given an opportunity to respond.  He did not respond. 

12.  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.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  An UOTHC discharge is normally appropriate for a Soldier discharged for acts or patterns of misconduct.

13.  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.

14.  In reaching its determination, the Board can consider the applicant's petition, his statements, 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 relief is not warranted.  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 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

     a.  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.  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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016588
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