RMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 April 2019

	DOCKET NUMBER:  AR20160017780


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Personal Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Department of Veterans Affairs (VA) Medical Progress Records – 88 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 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 the sole supporter for his parents.  He was contacted in Germany by the American Red Cross and informed his father was seriously ill with a life threatening illness.  He returned to the United States on emergency leave to care for his father who was discharged from the hospital and to also care for his mother.  He just could not leave them in the state they were in at the time [1994].  The Army did grant him an extension of his emergency leave, but he took it upon himself to remain with them so he could continue caring for them.  He was classified as absent without leave (AWOL) and was aware of the consequences of his decision, but he had to help his parents.  He served during the Gulf War (1991) and now suffers from post-traumatic stress disorder (PTSD).  He did not understand at the time of his service he was suffering from PTSD.  He received no medical treatment for his mental health conditions while on active duty.  

3.  In a continuation sheet, the applicant states he was almost killed in a tank misfire explosion.  He was injured by shrapnel and his injuries were never recognized by the Army nor was he awarded a Purple Heart for the training incident that almost claimed his life.  He now has limited use of his right hand as his grip is limited.  This medical condition was also not addressed by the Army.  He restates his request to have his discharge favorably upgraded for it was due to (personal) circumstance that prevented him from being able to return to his duty station in Germany. 

4.  After a brief period in the delayed entry program, the applicant enlisted in the Regular Army on 16 January 1991 for a period of 4 years.  He was trained in and awarded military occupational specialty 19K (Armor Crewman).  He was reassigned to Germany.

5.  The Desert Shield/Storm Data Base shows the applicant served in the Gulf War from 1 September to 30 September 1991.  The Defense Manpower Data Center (DMDC) compiled the Desert Shield/Storm Data Base.  The primary Desert Shield/Storm file contains a record for each active duty member who participated in-theater. 

6.  Orders 55-108 were published on 4 March 1992 by his unit authorizing him emergency leave effective 5 March 1992 for a period of 18 days.  The orders detail the instructions he was to follow should he need assistance.   

7.  On 24 September 1992, the applicant’s duty status changed from present for duty to absent without leave (AWOL). 

8.  On 24 October 1992 his duty status changed from AWOL to dropped from the rolls as a deserter. 

9.  On or about 26 November 1993 he returned to the control of military authorities in Harlingen, Texas.  He was transferred to the personnel control facility located at Fort Sill, Oklahoma and ultimately reassigned from his unit in Germany to Fort Sill, Oklahoma. 

10.  On 30 November 1993, court-martial charges were preferred against the applicant for being AWOL from 24 September 1992 to 26 November 1993 as recorded on DD Form 458 (Charge Sheet). 

11.  On 2 December 1993 the applicant consulted with counsel (a Judge Advocate General’s Corps officer).  He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge.  Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Enlisted Personnel – Enlisted Separations).  He did not submit statements on his own behalf and acknowledged/understood:

* he had not been subjected to any coercion whatsoever by any person 
* by submitting his request he acknowledged that he was guilty of the charge against him or a lesser offense
* he did not desire rehabilitation and had no desire to perform further military service
* if his discharge request was accepted, he could be discharged UOTHC
* as a result of the issuance of a UOTHC discharge he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life
* there was no automatic upgrade nor review by any Government agency and that he must apply to the Army Discharge Review Board or the ABCMR for a review of his discharge
* he did not desire a physical examination prior to separation 

12.  His unit commander prepared an endorsement to accompany his request for discharge.  His unit commander stated the applicant had become disillusioned with the military and that he departed his unit for personal reasons. 

13.  On 14 January 1994, a military lawyer reviewed the applicant’s request for discharge and had no legal objections. 

14.  On 18 January 1994, the separation authority approved the applicant's request for discharge, directed his reduction in grade to private (PV1)/E-1, as well as the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

15.  On 20 January 1994 Orders 020-18 were published ordering the applicant’s separation with an effective date of 7 February 1994.  

16.  On 7 February 1994 he was discharged accordingly.  His DD Form 214 reflects the following pertinent information:

* item 4a (Grade, Rate or Rank) – Private (PV1)
* item 4b (Pay Grade) – E1
* item 12h (Effective Date of Pay Grade) – 18 January 1994
* item 24 (Character of Service) – UOTHC
* item 25 (Separation Authority) – Army Regulation 635-200
* item 26 (Separation Code) – KFS
* item 28 (Narrative Reason for Separation) – in lieu of trial by court-martial 
* item 29 (Dates of Time Lost During this Period) –24 September 1992 to 26 November 1993

17.  There is no evidence the applicant applied to the Army Discharge Review Board within its statutory limitations.

18.  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 guidance, 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.

19.  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 post-traumatic stress syndrome; traumatic brain injury; 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.

20.  On 1 February 2019, the Army Review Boards Agency Case Management Division sent the applicant a letter requesting he provide medical documents to support his mental health issues and physical conditions. 

21.  The applicant responded and provided 88 pages of his VA medical records on 22 February 2019.  A VA problem list shows among his medical conditions he has chronic PTSD, major depressive disorder, generalized anxiety disorder (not otherwise specified) and alcohol abuse.  During treatment, there are annotations that he declined to discuss the trauma he encountered presumably in Southwest Asia.  However, there are notes further in his evidence showing he has a history of combat trauma by witnessing burned and wounded bodies (presumably the Gulf War). 

22.  On 12 March 2019, the Army Review Boards Agency (ARBA) staff psychologist provided an advisory opinion.  The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing.  She further states that upon her review of available medical service records, there is a lack of evidence that the applicant’s misconduct (AWOL) was mitigated by a behavioral health condition at the time of his service in 1992 when he went AWOL.  She attributes his extended absence to family/life circumstances occurring in 1992-1993.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

23.  The applicant was provided a copy of the advisory opinion on 18 March 2019 and given an opportunity to submit comments.  He responded by submitting copies of his VA progress medical records.
BOARD DISCUSSION:

1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests.  The Board discussed the nature of his misconduct, his Gulf War service, his statement, his current VA problem list showing PTSD and the conclusions of the advising official regarding mitigating conditions for his misconduct.  The Board majority determined that liberal consideration should be applied and recommended an upgrade of his discharge character of service.

2.  After reviewing the application and all supporting documents, the Board found that partial relief was warranted.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:X	:	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 7 February 1994 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.  Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. 

     b.  Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. 

     c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

     d.  Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. 

     e.  Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred.  The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense.  A discharge under other than honorable conditions was normally considered appropriate.

3.  Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons.  

* SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il
* SPN KFS was the code used for enlisted personnel separating under the provisions of Army Regulation 635-200, Chapter 10
4.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge.  It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation.  The instructions stated to use the DA Form 20 and orders to verify the entries on the DD Form 214.

5.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 



ABCMR Record of Proceedings (cont)	 AR20160017780
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