ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: January 14, 2020 DOCKET NUMBER: AR20160018567 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (ABCMR) 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 sustained a traumatic brain injury while stationed in Korea. This in effect had a tremendous impact on his mental stability and led to obvious excess leave. He was diagnosed with post-traumatic stress disorder (PTSD) and depression for which he requires medical attention on a regular basis. 3. Review of the applicant’s service records show: a. He enlisted in the Regular Army on 26 January 1994. He held military occupational specialty 68N (Avionic Mechanic). b. A DA Form 4187 (Personnel Action), dated 28 January 1994, stated he was denied advancement to pay grade E-2. c. He served in Korea from 23 September 1994 to 22 February 1996. d. On 23 February 1996, he was reported absent without leave (AWOL). He was dropped from the rolls of his organization on 25 March 1996. He surrendered to military authorities and was returned to military control on 10 May 1996. e. On 16 May 1996, court-martial charges were preferred against him for one specification of being AWOL from 23 February to 10 May 1996. f. On 16 May 1996, after consulting with legal counsel, he requested a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court- martial). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * he may be deprived of many or all Army benefits * 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 * he waived his rights and elected not to submit a statement in his own behalf g. On 30 May 1996, his immediate commander recommended approval of the applicant’s discharge request. The commander stated there did not appear to be any reasonable ground that the individual is, or was, at the time of misconduct, mentally defective, deranged, or abnormal. He recommended the applicant be discharged under other than honorable conditions. h. On 24 June 1996, the separation authority approved his discharge and directed the issuance of an under other than honorable conditions discharge. i. He was discharged accordingly on 15 August 1996. His service was characterized as under other than honorable conditions. His DD Form 214 shows he completed 2 years, 4 months, and 3 days of net active service, with 91 days of time lost. This form also shows he was awarded/authorized the: * National Service Medal * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars * Aircraft Crewman Badge j. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within it 15 year statute of limitations. k. An advisory opinion was received from the Clinical Psychologist, Army Review Boards Agency, on 19 November 2019, in the processing of this case. The psychologist reiterated the applicant’s period of service and stated: (1) Review of the electronic Department of Veterans Affairs medical record indicated the applicant received behavioral health treatment during two inpatient psychiatric admissions. The first admission was from 8 to 13 May 2015, due to suicidal ideation following his release from prison after serving an 8 year sentence. His second admission was from 7 to 13 January 2016, due to suicidal ideation. He was diagnosed with Depressive Disorder, Not Otherwise Specified and Cocaine and Alcohol Dependence. The applicant did not have a service-connected disability rating. (2) In accordance with the September 2014 Secretary of Defense Liberal Guidance Memorandum, there was no documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicated that the applicant did meet medical retention standards with respect to behavioral health diagnoses IAW AR 40-501 (Standards of Medical Fitness). There was no behavioral health condition to consider with respect to the misconduct that led to his discharge. l. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 4. By regulation (AR 635-200), 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 in lieu of trial by court-martial. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service; however, the separation authority may direct a General Discharge Certificate, if such is merited by the Soldier’s overall record during the current enlistment. 5. 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 found relief was not warranted. Based upon the length of the AWOL offense and the medical advisory’s finding that there was no behavioral health condition to consider with respect to the misconduct that led to his discharge, as well as a lack of any rebuttal submitted by the applicant to refute those findings, the Board concluded that the characterization of service received at the time of separation 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 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, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – a general discharge was 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. c. Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 3. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160018567 4 1