BOARD DATE: 4 February 2020 DOCKET NUMBER: AR20160019305 APPLICANT REQUESTS: through counsel reconsideration of his prior request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 15-page Counsel's Brief with exhibits FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100014261 on 23 November 2010. 2. In a 15-page brief, counsel states, in part: a. The applicant strove to put his traumatic childhood behind him, but the stress of his third foreign tour in five years was too much to bear. He had joined the Army nine years prior to move past the abuse, sexual assault, racism, and poverty that filled his young life, but he could not escape them. In the fall of 1982 in Korea, the applicant's mental state shattered. He contemplated suicide; was absent from duty; had conflicts with his superiors; drove recklessly, and drank to excess. Even at the time, the applicant recognized he was "crazy" and asked to see a doctor. Accessing mental health care was hard, and he never received the help he needed. Even if he had been able to see someone, the appropriate diagnosis of post-traumatic stress disorder (PTSD) had been defined just three years prior and effective treatment for the condition was years in the future, so it is unlikely he would have received adequate care. In the end, the applicant was discharged under other than honorable conditions. b. Sadly, tragedy continued to follow the applicant after the Army. He got married only to lose his wife to cancer three years later, leading to a period of mental crisis and homelessness. But he eventually was able to get the help that he needed and now has pulled his life together. He has been employed, has an apartment, and attends church. He is in treatment for PTSD and his clinicians at VA point to him as the model of a veteran success story. Counsel contends: * The applicant's post-traumatic stress disorder (PTSD), aggravated by military service contributed to the misconduct which led to his discharge and an OTH characterization is improper and unjust * In today's Army, the applicant would have had better access to care and treatment for PTSD that would have prevented his discharge and an OTH characterization is unjust * The applicant's meritorious service, years station on the front lines of the Cold War, and mental health condition outweighed the misconduct that led to his discharge and an UTH characterization is unjust * The applicant's good conduct post-service and the passage of time render further burden of an OTH discharge is too harsh. Counsel's complete brief is available for the Board's review and consideration 3. Counsel provides a 3-page statement from the applicant. The applicant gives a timeline of his childhood and military experiences. He states, in part: a. He spent more than half of his military service outside of the U.S. He was not doing well under the pressure and stress. He sought help from the chaplain, but did not go to sick call. He had undiagnosed mental health problems. The mindset at the time was if you were not bleeding, nothing was wrong. He was disciplined a number of times and then separated with an OTH discharge. He did not understand at that time the effect that an 0TH discharge would have on his life. He thought if he did not have a Dishonorable discharge then he would be okay. b. After leaving the Army, he struggled. He was suffering from the childhood issues made worse by his military service. He was not receiving the proper treatment. At times he was homeless and stayed a shelter. After many years he was finally able to get some help from VA doctors. VA diagnosed him PTSD. VA provided him support and counseling. He has been drug free for more than seven years. The applicant's complete statement is available for review and consideration by the Board. 4. The applicant enlisted in the Regular Army on 1977. He served in Germany from 12 June 1977 to 29 November 1978 and in Korea from 29 July 1980 to 1 July 1981 and 13 February 1982 to 18 January 1983. 5. The applicant accepted nonjudicial (NJP) on the following dates for the following offenses: * 9 August 1979 for disobeying a lawful order from a superior noncommissioned officer (NCO), disobeying a lawful order from a superior commissioned officer, and behaving with disrespect toward a superior commissioned officer * on or about 17 November 1980 for wrongfully possessing marijuana, behaving with disrespect toward a superior commissioned officer, and willfully disobeying a lawful command from a superior commissioned officer * 10 September 1982 for violating a lawful order * 30 November 1982 for wrongfully possessing marijuana, absenting himself from his unit, and violating a lawful general regulation * 1 December 1982 for violating a lawful general regulation by committing a pass violation and for failing to be at his appointed place of duty 6. On 22 December 1982, he was charged with: a. four specifications of violation of Article 86 for twice failing to go at the time prescribed to his appointed place of duty on 2 December 1982, absenting himself from his unit from on or about 9 December 1982 to on or about 14 December 1982, and absenting himself from his unit from on or about 16 December 1982 to on or about 22 December 1982; b. one specification of violation of UCMJ, Article 90 for willfully disobeying a lawful command from a superior commissioned officer on 6 December 1982; and c. four specifications of violation of Article 91 for willfully disobeying lawful orders from superior NCO's on three occasions and being disrespectful in language to a superior NCO, all on 6 December 1982. 7. On 4 January 1983, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court- martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him. 8. In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser included offenses and the imposition of a bad conduct or dishonorable discharge was authorized. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 9. On 11 January 1983, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). On 19 January 1983, he was discharged accordingly. He completed 5 years, 11 months, and 14 days of total active military service with 11 days of lost time. 10. On 24 February 1988, the Army Discharge Review Board informed the applicant that his request to upgrade his discharge was denied. 11. On 16 December 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, based on a thorough review of available records, it is more likely than not the applicant was struggling with childhood PTSD at the time of his discharge; however records do not support it was service aggravated. While the post-service diagnosis of MDD is acknowledged, records support this developed after the loss of his wife in 1993; the applicant did not have major depressive disorder while in-service, rather in-service symptoms were related to the childhood PTSD. Given PTSD is associated with substance abuse, difficulty with authority, and avoidance, and irrespective of whether or not it was service aggravated, the applicant did have PTSD while in-service and this does mitigate his misconduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 6 January 2020, in response to the advisory opinion, counsel submits a 3-page statement and states in part, based on the evidence submitted by the applicant and the advisory opinion, the Board should grant the applicant's request because his case satisfies the criteria set forth in the Hagel and Kurta memorandum. While the applicant's application has been pending, the Department of Defense issued the Wilkie Memorandum, which contains guidance regarding the Board's review of applications on the basis of equity, propriety, and clemency. His application did not reference the Wilkie Memorandum; however, the memorandum should apply favorably to the applicant's request. Counsel's complete rebuttal is available for the Boar's review and consideration. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 HD or a general discharge is authorized, a discharge UOTHC is normally considered appropriate. 14. In reaching its determination, the Board can consider the applicant's petition, his statement and service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement (and counsel), his record of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board considered the review and conclusions of the medical advising official as well as the applicant’s response. The Board found sufficient evidence of in-service factors to mitigate the applicant’s misconduct. Based on a preponderance of evidence, the Board determined that a change to the applicant’s character of service was appropriate as a matter of liberal consideration. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. ? 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 amending the DD Form 214 for the period of service ending 19 January 1983 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 HD or a general discharge is authorized, a discharge UOTHC is normally considered appropriate. a. Paragraph 3-7a, provides that an HD 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. b. Paragraph 3-7b, provides that 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 HD. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 2. 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 (TBI); sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 on the basis of 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) AR20160019305 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1