ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20160019207 APPLICANT REQUESTS: The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his service characterized as general, under honorable conditions in lieu of under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 at the time of discharge he had undiagnosed mental health issues that he did not know about at the time; he also had chemical dependency issues. 3. The applicant enlisted in the U.S Army Reserve on 18 January 1995 for 8 years and he was honorably discharged on 8 August 1996. He enlisted in the Regular Army on 9 August 1996 for 4 years. He held military occupational specialties 51B (Carpentry and Masonry Specialist). 4. He departed his unit at Fort Leonard Wood, MO, in an absent without leave (AWOL) status from: a. 15 through 28 October 1996 until he returned and surrendered to orderly room personnel at Fort Leonard Wood. b. 5 January through 20 March 1997. He was dropped from Army rolls on 5 February 1997. Orders 86-6, U.S. Armor Center, Fort Knox, KY show he surrendered to military authorities at Fort Campbell, KY, on 21 March 1997 and he was further assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox. 5. On 25 March 1997, court-martial charges were preferred against the applicant for being AWOL from on or about 5 January to 20 March 1997. 6. On 25 March 1997, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. 7. Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service - in lieu of trial by court-martial. In his request for discharge the applicant acknowledged that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to submit a statement on his own behalf. 8. On 19 May 1997, his immediate commander recommended approval of the applicant’s request for discharge with the issuance of an under other than honorable conditions discharge. He also stated there was no reasonable ground to believe the applicant is or, was at the time of his misconduct, mentally defective, deranged or abnormal. 9. On 6 June 1997, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial and directed that he be reduced to private/E-1 and the issuance of an under other than honorable conditions discharge. 10. On 23 June 1997 the applicant was discharged accordingly. He completed a total of 7 months, and 16 days of creditable active military service. His DD Form 214 shows He was awarded or authorized the Army Service Ribbon and had lost time from 15 to 28 October 1996 and from 5 January to 20 March 1997 (90 days). 11. On 29 January 2018 the Army Review Boards Agency (ARBA) psychiatrist provided an advisory. The Board was provided the advisory in its entirety, it states, in pertinent part, the applicant's available medical records are void of documentation of any behavioral health symptoms, behaviors or conditions. There is no indication he failed to meet medical retention standards. Based on the available information, there is insufficient evidence to support his contention that the misconduct leading to his UOTHC was due to psychiatric reasons and/or substance abuse. ARBA provided the applicant the advisory opinion and provided him the opportunity to submit additional statements and/or documents on his behalf. He did not respond. 12. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 13. The applicant requested the Board upgrade his discharge based on undiagnosed mental health issues and chemical dependency. The ARBA psychiatrist determined there is insufficient evidence to support his contention that psychiatric reasons and/or substance abuse was a nexus for his misconduct. 15. 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 guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration. 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. 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 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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. b. Paragraph 3-7a,states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. c. Paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. a. 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. b. 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) AR20160019207 5 1