ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  24 May 2019

	DOCKET NUMBER:  AR20160016711


APPLICANT REQUESTS:  his general, under honorable conditions discharge (GD) be changed to an honorable discharge (HD) due to post-traumatic stress disorder (PTSD).

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 discharged due to patterns of misconduct due to PTSD.  He wanted help while he in the Army, however help was denied.  He has been treated
for PTSD for the last five years.

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

* 20 August 1991, for being absent from his unit without authority from on or about 7 July 1991 to on or about 15 August 1991
* 22 October 1991, for breaking restriction and purchasing or possessing an alcoholic beverage while under age on or about 28 September 1991 

4.  On 27 January 1992, the applicant’s company commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12, for acts or patterns of misconduct.  The applicant was informed of his rights and acknowledged notification of receipt.  
5.  On 29 January 1992, after consulting with counsel, who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of the effect of a waiver of his rights, the applicant indicated he would not submit statements in his own behalf, and he acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a discharge under conditions other than honorable were to be issued to him.
6.  On 17 February 1992, an authorized official approved the separation recommendation and directed the issuance of a GD.   On 9 March 1992, he was discharged in accordance with the authorized official’s decision.   
7.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge.
8.  On 11 March 2019, the ABCMR obtained an advisory opinion from a medical advisor with Army Review Boards Agency (ARBA), who states, in part, the data does not support the applicant’s contention that he was diagnosed with PTSD while in the military, or was denied treatment while he was on active duty status, or that his misconduct was mitigated by a behavioral health condition.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

9.  On 12 March 2019, the applicant was provided a copy of the opinion and given the opportunity for comment or rebuttal.  He did not respond.

10.  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.
11.  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.  The Board carefully considered the applicant’s request, his statement, evidence in the record, DoD guidance for consideration of discharge upgrades and the advisory opinion.  The Board discussed the misconduct that led to his separation and noted that the advising official did not find evidence of a condition or experience that may mitigate the misconduct.  The Board found the character of service appropriate at the time of his separation.

2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted.

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.
     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 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.


ABCMR Record of Proceedings (cont)	 AR20160016711
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