ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20160019725 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim) * VA Disability Benefits Questionnaire for Post-Traumatic Stress Disorder (PTSD) 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 AR20130011952 on 5 March 2014. 2. The applicant states he agreed to resign from the Army when he was told that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) would reflect a general, under honorable conditions discharge after his release from active duty. He further stated that he was suffering from undiagnosed PTSD. He is submitting new evidence from Dr. X____ to support his request. 3. The applicant provides: a. A VA Form 21-0781 to support his claim for service connected PTSD. The applicant provided a description of the incident detailing duty in the hospital which required him to clean up blood and human debris. He also had to remove deceased patients from the operating room. He indicated that he had never experienced anything like that and he was having recurring thoughts. b. An initial PTSD Disability Benefits Questionnaire, dated 14 October 2016 and a. signed by Dr. X____ reflects a diagnosis of PTSD. The remarks reflect that the applicant has a functional impairment that is severe, resulting in a lack of motivation, drive, and difficulty getting along with people. 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 17 March 1969. He served in Germany from 24 October 1969 to 11 March 1971. b. He accepted nonjudicial punishment on 12 June 1970 for failure to obey a lawful order. c. Court-martial charges were preferred against the applicant on 12 October 1970 for one specification of assault while intentionally inflicting grievous bodily harm. d. On 5 December 1970, after consulting with legal counsel, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable 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 e. Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge for the good of the service on 14 December 1970. He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted pay grade. f. He was discharged from active duty on 9 January 1971 with an under other than honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 9 months, and 23 days of active service. It also shows he was awarded or authorized: * National Defense Service Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * 5. On 1 May 2017, the Army Review Boards Agency clinical psychologist rendered an advisory opinion in the processing of this case. She opined: a. The military records indicated the applicant’s early separation from the Army was based on a 12 October 1970 charge in which he assaulted another Soldier and inflicted grievous bodily harm, to include a fractured jaw and deep cuts on the face. b. Based on thorough review of available medical records, there is no evidence that the applicant met criteria for PTSD during his military service. His military record is void of specific facts and circumstances concerning events that could have contributed to a service connected diagnosis of PTSD and how this diagnosis impacted his misconduct (i.e. fighting). Furthermore, there is no mention of him being hospitalized during basic training or working as a clean-up orderly in a Fort Polk hospital surgery room. This observation does not negate the applicant’s post-service diagnosis of PTSD from the VA/ however, the VA conducts evaluations based on different standards and regulations. 6. On 1 May 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 7. 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 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. 8. 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 seriousness and violent nature of the misconduct, as well as the finding that there was no evidence that the applicant met criteria for PTSD during his military service, the Board concluded that the characterization of service received at the time of discharge 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. 5/16/2019 X CHAIRPERSON Signed by: 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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority 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 Soldier’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 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 honorable discharge. c. Chapter 10 of this regulation states 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. 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.