ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20160018315 APPLICANT REQUESTS: to upgrade his discharge from under other than honorable to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Character references * Certificate of completion for substance abuse treatment 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 that he would like his under other than honorable discharge upgraded to a general discharge. He suffers from post-traumatic stress disorder (PTSD). He successfully completed substance abuse treatment. He states through a self-authored statement that he served his country in Saudi Arabia during Operation Desert Storm. When he arrived back in the U.S, he went absent without leave (AWOL). He knows he was wrong for doing so. He was so ashamed of himself. He was too afraid to reach out for help at that time. He kept on running. He finally came to his senses when a veteran representative came to talk to him when he landed in prison in 2004. He started working with the veteran affairs in 2012. This was the best decision that he made in his life to reach out for help. He is presently enrolled in a PTSD course at Bay Pines to continue to receive treatment. 3. He provides character reference letters that summarize positive aspects of his personal behavior and achievements since his discharge. 4. A review of his service record shows: a. On 23 December 1986, he enlisted in the Regular Army (RA). b. He reenlisted in the RA on 24 January 1990. c. He served in Germany from 1 July 1987 to 1 July 1989. He served in Southwest Asia in support of Operation Desert Storm from 16 September 1990 to 14 March 1991. d. On 16 March 1991, he was promoted to sergeant/E-5. e. On 21 October 1991, he accepted nonjudicial punishment (NJP) for absence without leave, and wrongful use of cocaine. His punishment included reduction to the grade of specialist/E-4. f. He was notified of his commanders initiation of separation procedures on 21 October 1991 under the provisions of AR 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12c (misconduct-commission of a serious offense) for AWOL (absent without leave), failed to go to appointed place of duty at the prescribed time, and positive cocaine urinalysis. g. On 21 October 1991, the applicant acknowledge receipt of his commander’s notification and his election of rights. * He had been advised by consulting counsel * He waived consideration of his case by a board of officers * He waived personal appearance before the board * Understood he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * Understood that he has up until the date of separation authority orders to withdraw this waiver and request that a board of officers hear his case h. On 22 October 1991, the applicant waived his right to a separation medical examination. i. On 23 October 1991, his immediate commander recommended separation under the provisions of AR 635-200, chapter 14-12c (misconduct-commission of a serious offense). j On 23 October 1991, his intermediate commander recommended separation under the provisions of AR 635-200, chapter 14-12c (misconduct-commission of a serious offense). k. On 5 November 1991, the separation authority approved separation under the provisions of AR 635-200, chapter 14-12c (misconduct-commission of a serious offense). The separation authority approved the discharge on 15 November 1991 with an under other than honorable discharge certificate. l. On 4 February 1992, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for misconduct-commission of a serious offense, under the provisions of AR 635-200 paragraph 14-12c with an under other than honorable conditions discharge. It shows he completed 4 years, 8 months and 6 days of active with 20 days of lost time. It also shows that he was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Army Good Conduct Medal * Parachutist Badge n. A medical advisory opinion was completed on 3 October 2017 and the clinical psychiatrist stated that the applicant has a rating of 10% with the VA. The listed problems include behavioral health diagnosis of PTSD, chronic; major depressive disorder, mild recurrent homelessness; cocaine abuse, and alcohol dependence. Based on the available documentation and in accordance with Army Directive 2014-28, the applicant’s PTSD is considered mitigating for the misconduct leading to his under other than honorable discharge from the army. The applicant’s military record do support an in-service diagnosis of PTSD and there is no indication that the applicant failed to meet retention standards IAW AR 40-501 ((Medical Services Standards of Medical Fitness). The applicant’s misconduct is mitigated by his diagnosis of PTSD. 4. By regulation, AR 635-200, Chapter 14 states that procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 5. By regulation, AR 40-501, states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. 6. 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 partial relief was warranted. One potential outcome discussed was to grant a change in the characterization based upon the medical advisory’s finding that the misconduct was mitigated by the applicant’s PTSD. However, the Board concluded that notwithstanding the advisory opinion, the Board found there was no mitigating factor to his misconduct. No diagnosis or symptoms during his period of service. However, the Board noted that the applicant had prior honorable service which was not currently depicted on the DD Form 214 and recommended that correction be made to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X : GRANT FULL RELIEF X : X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 23 December 1986 until 23 January 1990.” 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. 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) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) 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. b. Paragraph 3-7b (General Discharge) 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. Chapter 14 -12(c)(1) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. Absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. 3. AR 40-501, states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. 4. 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) AR20160018315 0 4 1