ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20160018156 APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions to honorable. 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 needs an upgrade of his characterization of service to get a mortgage from United Services Automobile Association (USAA). He states he was released due to mental health reasons (depression) under honorable conditions. 3. A review of the applicant’s service records shows the following: a. He enlisted in to the Regular Army (RA) on 26 May 1969. b. His DA Form 20 (Enlisted Qualification Record) reflects that he was designated absent without leave (AWOL) for a period of 15 days from 3 February 1970 to 17 February 1970. c. On 6 April 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification of AWOL. His punishment in part, consisted of reduction to private/E-2. d. He was reported AWOL for a period of 30 days from 24 June 1970 to 23 July 1970. He was dropped from rolls on 24 July 1970 until 11 August 1970. e. On 17 August 1970, his immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), based on his pattern of unproductivity, which fits the description of apathy (defective attitudes and inability to expend effort constructively). f. On 18 August 1970, he completed a psychiatric interview. The diagnosis was immature personality, characterized by drug abuse. He was mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings. g. On 26 August 1970, the applicant acknowledged the commander’s intent to separate him under the provisions of AR 635-212. Subsequent to acknowledgement, he consulted with legal counsel and acknowledged: * he has been advised of the basis for the separation and its effects * he may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * he may be ineligible for many or all benefits as a veteran under both Federal and State laws h. Consistent with the chain of command's recommendation, on 17 August 1970, the separation authority approved his discharge from the service under provisions of AR 635-212, and approved an under honorable conditions (general) characterization of service. i. On 27 August 1970, the applicant was discharged from active duty under the provisions of AR 635-212, with a general under honorable conditions characterization of service. He completed 1 year and 26 days of active duty service and was assigned Separation Program Number 264 (unsuitability). He had 65 lost days from 3-17 February 1970, 18 February 1970 through 23 July 1970, and 24 July 1970 through 11 August 1970. He was awarded or authorized: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M14) 4. On 27 January 1971, a DD Form 215 (Correction to DD Form 214), was completed to reflect in: * Item 2 (Service Number), RA 68-105-893 * Item 22a(1) (Net Service This Period), 1year, and 27 days * Item 22a(3) ((Total), 1 year, 2 months, and 15 days * Item 22b (Total Active Service), 1 year, and 27 days * Item 26a (Non-Pay Periods Time Lost), 65 days time lost: 3-17 Feb 70, 18-18 Feb 70, 24 Jun-23 Jul 70 and 24 Jul-11 Aug 70 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 18 April 2019. The psychologist opined: a. There is no data to mitigate the applicant’s misconduct. b. There is no data which supports the presence of Post-Traumatic Stress Disorder (PTSD). c. The applicant met all medical retention standards at the time he was administratively separated from the U.S. Army. d. The applicant was administered a mental status examination on 18 August 1970. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 7. By regulation AR 635-212, an individual separated by reason of unsuitability will be furnished an undesirable discharge certificate except that an honorable or general discharge may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 8. 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: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct, as well as the findings of the medical advisory, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 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) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), establishes policy and provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 3. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. 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 under other than honorable conditions, 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. 6. 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; TBI; 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 to 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. 7. 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 (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 based on 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) AR20160018156 4 1