ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20160017911 APPLICANT REQUESTS: * An upgrade of his under other than honorable conditions discharge * Rank at time of discharge be restored to that of his first honorable discharge as sergeant/E-5 * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veteran Affairs (VA) paperwork, 14 September 2016 * Medical documents * Military Personnel Records Jacket (MPRJ) documents * Army Discharge Review Board (ADRB) documents, 21 July 1989 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 has recently been found by the VA to be suffering from severe post-traumatic stress disorder (PTSD) as well as traumatic brain injury (TBI) from a severe beating he endured at the hands of fellow Soldiers in June of 1982. Residual effects include, inter alia, scarring, gastroesophageal reflux disease (GERD) and erectile dysfunction. Although diagnosed several times in Germany for depression during that period, and having a psych review before his security clearance was withdrawn, no treatment was ever offered to him. These symptoms worsened after he was married at Fort Sill, OK and his wife began having issues of her own. When he was again deployed to Germany, she refused to accompany him, and threatened suicide. He tried to get assistance from his command, but no one seemed to be able to do anything, except grant him leave to go back and try to sort things out. While home, he tried for compassionate reassignment but was turned away. His mind was so shattered that he wound up being absent without leave (AWOL) and stayed that way out of worry for family, terror, and mental breakdown. 3. The applicant provides: a. VA paperwork dated, 14 September 2016, which explains his disabilities and percentages: * PTSD – 70% * GERD – 60% * Hypertension – 10% b. Medical documents that shows his medical history. c. MPRJ documents that shows his accomplishments, schools, awards, and separation packet during service. d. ADRB documents showing he applied to ADRB; many documents are illegible. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 8 July 1980. He had two periods of immediate reenlistment on 23 May 1984 and 30 January 1986. b. DD Form 458 (Charge Sheet) indicates court martial charges were initiated on 10 December 1986. He was charged with one specification of AWOL for a period from on or about 16 June 1986 until on or about 4 December 1986. c. On 11 December 1986, the applicant consulted with legal counsel and subsequently requested discharge for the good of the service, in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he is guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge * if approved, he may be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge d. On 17 December 1986, his immediate and intermediate commanders recommended separation under provisions of AR 635-200, chapter 10 and an under other than honorable conditions discharge. e. On 29 December 1986, consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge for the good of the service and ordered his service be characterized as under other than honorable conditions. He would be reduced to private/E-1. f. On 2 February 1987, he was discharged under provisions of AR 635-200, Chapter 10 under conditions other than honorable in the rank of private/E-1. He completed 6 years, 1 month and 7 days of active service. He had lost time this period from 16 June 1986 – 3 December 1986. g. On 1 April 1990, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. On 29 May 2019, the Army Review Boards Agency clinical psychologist advisor rendered an advisory opinion in the applicant’s case. The advisor opined: a. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant’s military medical records DOES support the existence of PTSD at the time of discharge. b. The applicant’s medical records indicate that the applicant did meet medical retention standards IAW AR 40-501. c. The applicant’s VA diagnosis of PTSD is a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military. 6. On14 June 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (30 days) to submit a response and/or a rebuttal. 7. He responded on 14 June 2019 by email. He stated he would not be submitting any comments on the findings. 8. By regulation, AR 15-185 (ABCMR), the ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. a. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. b. AR 600-8-19, Enlisted Promotions and Reduction, prescribes provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. c. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). d. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable conditions discharge will normally be furnished an individual who is discharged for the good of the service. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. He contends PTSD mitigated the misconduct that resulted in his discharge. Evidence of record shows he went AWOL for approximately 6 months, four years after the incident he alleged caused his PTSD. The medical advisory official informed the Board AWOL could be a PTSD symptom. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record, and agreed to upgrade his character of service to honorable noting his PTSD mitigated the misconduct leading to his reduction in rank and separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : 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 for the period ending 2 February 1987 showing his character of service as Honorable, and restoring his rank to SGT/E5 with an effective date of paygrade of 6 August 1985. 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. 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 4. AR 600-8-19, Enlisted Promotions and Reduction, prescribes provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. Paragraph 6-1e states when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, they will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions, or when directed by higher authority, direct the Soldier to be reduced to private, E–1. If discharge is approved under other than honorable conditions but is suspended the Soldier will not be reduced under this provision. 5. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 7. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. d. Chapter 10 (Discharge for the Good of the Service) of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. 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; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017911 5 1