ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20160019551


APPLICANT REQUESTS: reconsideration of an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions or honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Mental Disorders Disability Benefits Questionnaire
* Five Statements of Support 

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 AR20080016708 on 19 February 2009.

2.  The applicant states, he was young and was around the wrong group of people.  He started drinking, and eventually using drugs, but wasn’t strong enough to quit before becoming addicted.  He has been clean for 35 years, and request relief based on the Secretary of Defense guidance on post-traumatic stress disorder (PTSD).

3.  The applicant provides:

	a.  Mental Disorders Disability Benefits Questionnaire, dated 11 August 2016, which states that the applicant meets Diagnostic and Statistical Manual of Mental Disorders (DSM 5) criteria for major depressive disorder, severe, recurrent with psychotic features and opiate use disorder in full sustained remission.

b.  Statement of Support (X), 5 July 2016, which states that the applicant is honest, kind, generous and helpful.  They would accept him as a friend – neighbor.

c.  Statement of Support (X), dated 8 June 2016, which states the applicant is a man of great character, that believes in doing the right thing.  He is an honest compassionate man who is always willing to help others.

d.  Statement of Support (X), dated 5 July 2016, which states that they have known the applicant since birth and have watched him and her son grow together.  She states he is responsible, honest, kind and humble.  She is 93 years old and can attest that the applicant has gained wisdom with age.

e.  Statement of Support (X), dated 3 June 2016, which states the applicant is hard working, and a caring father and grandfather.  He has outstanding character, and the author, who is also a veteran would definitely vouch for him.

f.  Statement of Support (X), dated 5 June 2016, which states they have known the applicant their entire life, and known him to be very hardworking, fun loving and caring.  He always exhibit love for family and friends and continually willing to help someone in need. 

4.  A review of his service records shows:

	a.  He enlisted on 6 June 1972 in to the Regular Army (RA).

	b.  His DA Form 20 (Enlisted Qualification Record), shows he was absent without leave (AWOL) for a period of 176 days from 14 May 1973 to 5 November 1973.

	c.  Court marital charges were preferred on 7 November 1973.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL for a period of 162 days, from 14 May 1973 through 23 October 1973.

	d.  He consulted with legal counsel on 9 November 1973 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 
* if approved, he may be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration, and that 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 because of an undesirable discharge

	e.  Consistent with the chain of command recommendation, on 27 November 1973, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service with an under other than honorable conditions characterization of service and reduction to the lowest grade.

	f.  On 19 December 1973, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions character of service.  He completed 1 year and 21 days of active service.  He had a total of 176 days lost time.

5.  The applicant’s record is absent evidence showing he deployed.

6.  The applicant twice applied to the Army Discharge Review Board for an upgrade of his discharge.  Those applications were denied on 9 November 1976 and 11 July 1978.

7.  On 30 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion.  The psychologist opined:

	a.  The applicant has submitted a number of appeals for an upgrade in the characterization of service from his discharge from the U.S. Army.  Each appeal has been denied.  The rationale for each denial is identical; based on the factual data, the applicant’s characterization of discharge was proper and equitable.

	b.  There is no data to mitigate the applicant’s misconduct.  He had significant illegal drug abuse and went AWOL for a significant period of time.  There is no data to indicate that he has a behavioral health disorder which falls within the purview of the Liberal Consideration guidelines.

	c.  The available record does not reasonably support PTSD, or another medically boardable behavioral health condition at the time of the applicant's military service.

	d.  It is clear that he met medical retention standards at the time of his misconduct.  There is no data to mitigate his misconduct.  He was administered a behavioral health evaluation on 14 November 1973.

8.  The applicant was provided with a copy of this advisory opinion on 1 May 2019 for review and an opportunity to submit a rebuttal, but he did not respond.

9.  The applicant applied for relief with the ABCMR on 19 February 2009, and the Board determined that the overall merits of the case are insufficient as a basis for correction of the records of the individual concerned.  The Board denied the case in full.

10.  By regulation, 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 for the good of the service.  An under other than honorable discharge will normally be furnished an individual is discharged for the good of the service.

11.  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 finding of the medical advisory that there is no data to mitigate the applicant’s misconduct and the lack of a rebuttal of those findings from the applicant, 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.  Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness), provides medical fitness standards of sufficient detail to insure uniformity in the medical evaluation of service members and potential service members.

2.  Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  

	a.  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.

	b.  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 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.

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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

ABCMR Record of Proceedings (cont)	 AR20160019551


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