ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170000493 APPLICANT REQUESTS: an upgrade of his discharge from under other than honorable to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 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: a. At the time of his discharge, he was suffering from severe emotional and marital issues. After being deployed to Korea for one year, he found out his wife was cheating on him. At a point while he was assigned at his next duty station, he was sent to the field for thirty days. While in the field, his sergeant informed him that his wife had filed a restraining order against him and he would not be allowed to return to their home once he completed his duties in the field. He was hurt, devastated, and depressed. b. He tried to retrieve his personal belongings once he left the field. His wife informed him that he could arrive at their residence to pick up his items. Once there, the applicant saw his wife there with another man. He was filled with anger, rage, and felt out of control. He had to get away as far as possible from the situation, which led to his decision to go absent without leave (AWOL). He was confused, didn’t know what to do, and felt he had no one to talk to. He was in trouble and couldn’t figure out how to fix the situation. c. He loved being in the Army and wished he could have handled the situation differently. He never intended to leave the Army, which he considered to be his lifelong career. He expressed personnel situations ruined that. He still needs assistance a. coping and still has mental issues for which he is trying to get help. He doesn’t want his personal situations to overpower how good of a Soldier he was. If someone looks at his DD Form 214 (Certificate of Release or Discharge from Active Duty), he has several medals and badges. Again, he states he wish he could have handled the situation differently. He wished he could have known who to contact for assistance and counseling at that time. 3. The applicant’s service record contained a limited number of documents. A review of available documents shows: a. He enlisted in the Regular Army on 18 September 1990 and reenlisted on 18 February 1994. He served in Korea and attained the rank/grade of specialist four (SP4)/E-4. b. He was reported AWOL on 16 August 1996 and dropped from the rolls as a deserter on 17 September 1996. He was apprehended in College Park, GA and was returned to military control on 26 June 1997. c. Court martial charges were preferred against the applicant on a DD Form 458 (Charge Sheet), for one specification of being AWOL from 16 August 1996 to 26 June 1997. d. The applicant’s separation packet is not available for review. However, his service record contains: (1) Orders 261-0180, dated 18 September 1997, from Headquarters US Army Armor Center and Fort Knox, KY, reassigned the applicant to the US Army Separation Transfer Point for separation processing on 23 September 1997. (2) DD Form 214 that shows he was discharged on 23 September 1997, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, in lieu of court-martial and his service was characterized as under other than honorable conditions. He completed 6 years and 28 days of active service and accumulated a total of 338 days of lost time between 25 June and 18 July 1996 and 16 August 1996 to 25 June 1997. He was awarded and/or authorized: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Southwest Asia Service Medal with 3 bronze service stars * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal (SA) * Kuwait Liberation Medal (KU) * * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar e. Item 18 of his DD Form 214 shows the entry "continuous honorable service from 18 September 1990 to 17 February 1994" and that he immediately reenlisted through 17 February 1997. It also shows he served in Southwest Asia from 28 January to 3 May 1991. 4. After receipt and initial processing of the applicant’s DD Form 293 by the Army Review Boards Agency (ARBA), Case Management Division, a request was sent to the applicant on 5 April 2017, requesting the applicant to provide a copy of any medical documents (from a doctor that diagnosed him or from his Department of Veterans Affairs Regional Office to support his issue of Mental Health Behavior condition. No response was received from the applicant within the specified time allowed. 5. A medical advisory opinion was received from the ARBA Clinical Psychologist in the processing of this case. The psychologist was asked to determine if there is a nexus between a boardable behavioral health condition and the misconduct that resulted in the applicant’s discharge. The psychiatrist provided the following opinion: a. The opinion is based on a thorough review of available medical records and documentation, which indicates that there is no evidence the applicant met criteria for a boardable behavioral health condition during his military service. b. His record is void of the specific facts and circumstances concerning events that could have contributed to a behavioral health service connected discharge from the Army, to include no supporting documentation regarding marital difficulties. c. Furthermore, there is no post-service medical documentation to support his contention of mental illness. d. The agency psychiatrist concluded, there is no evidence that a behavioral health condition mitigated the applicant’s misconduct leading to an early separation from the Army. 6. The applicant was provided with a copy of this advisory opinion and was given 30 days to provide a rebuttal or any comments. He did not respond. 7. By regulation, a member who has committed an offense 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 changes 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. 1. 8. The Board should consider the applicant’s submissions 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 misconduct and a lack of character evidence to show that the applicant has learned and grown form that misconduct, as well as the medical advisory’s finding that the applicant’s record is void of the specific facts and circumstances concerning events that could have contributed to a behavioral health service connected discharge from the Army, 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. 6/4/2019 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. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. 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 honorable discharge. c. 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. 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; traumatic brain injury; 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 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 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 1. 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.