BOARD DATE:  6 April 2020

		DOCKET NUMBER:  AR20170000608


APPLICANT REQUESTS:  upgrade of his general discharge under honorable 
conditions to honorable


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, section 1552(b); however, the 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 he was suffering from post-traumatic stress disorder (PTSD) 
during his time in the Army.  His PTSD has been determined by the Department of 
Veterans Affairs (VA) to be a service-connected disability with a rating of 100 percent.  
He is currently housebound and will never be able to hold a job because of his 
conditions, including PTSD, a skin disorder, back problems, and poor circulation.  

3.  The applicant enlisted in the Regular Army on 16 July 1986.  

4.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military 
Justice (UCMJ), shows he accepted nonjudicial punishment (NJP) under Article 15 of 
the UCMJ on 9 September 1987, for possessing an undetermined amount of hashish on 
21 June 1987.

5.  A DA Form 399 (Military Police (MP) Desk Blotter), shows the applicant was 
apprehended by German police while driving his vehicle in an erratic manner on 
17 September 1987.  He was taken to the German police station and administered a 
blood alcohol test, which showed he had been driving drunk.  He was then released to 
the MPs.

6.  A DA Form 4856-R (General Counseling Form), shows he was counseled on 
5 November 1987 about the initiation of an administrative discharge packet under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
chapter 14 for misconduct.  He was advised of his right to consult with Counsel and 
submit supporting documentation in his defense.

7.  A second DA Form 4856, shows the applicant was again counseled on 12 January 
1988 regarding the initiation of his separation proceedings from the Army.   His 
commander initiated proceedings for his separation from the Army under the provisions 
of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The reasons 
for his separation were his violations of the UCMJ and his poor performance.

8.  On 3 February 1988, his immediate commander initiated action to administratively 
separate the applicant under the provisions of Army Regulation 635-200, chapter 13, for 
unsatisfactory performance.  

   a.  The basis for the recommendation were the applicant’s unwillingness to follow 
instructions and constant disregard for his command.  He needed constant supervision 
and his disregard for authority was evidenced by his acceptance of NJP on two 
occasions and counseling statements for unsatisfactory performance.
   
   b.  This memorandum indicated a report of medical examination was attached, the 
applicant’s notification of the separation proceedings were attached, and the applicant’s 
acknowledgment of the notification, where he indicated he had been advised of his 
rights, was attached.  Those documents are not in his available records for review.

9.  On 4 February 1988, the approval authority approved the discharge under the 
provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and 
directed the characterization of his service as general.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he 
was discharged on 7 March 1988, under the provisions of Army Regulation 635-200, 
chapter 13, for unsatisfactory performance, after 1 year, 7 months, and 22 days of net 
active service.  His service was characterized as general, under honorable conditions.

11.  There is no evidence in the applicant’s available service or medical records that he 
was diagnosed with or treated for PTSD or PTSD-like symptoms during his period 
service.

12.  An advisory opinion was obtained from the Army Review Boards Agency (ARBA) 
clinical psychologist/medical advisor on 24 February 2020, which states:

     a.  A review of his VA medical records indicates he has a 100 percent service-
connected disability rating for major depressive disorder, effective September 2013.  He 
reported multiple in-service traumas, to include seeing a Soldier get shot on the range 
and another bitten by rattlesnakes.  While in prison for over 25 years, unrelated to his 
military service, he related seeing beatings and rapes.  He told the VA provider he was 
discharged due to inability to adapt to military and depression.  He was diagnosed with 
mood disorder, cocaine abuse, and potential personality disorder.  Later diagnoses of 
unspecified depressive disorder, panic disorder, alcohol use disorder and PTSD were 
added.  The trauma symptoms surrounding the PTSD diagnosis appear to be related to 
his brother’s death and prison events rather than military service.  His PTSD diagnosis 
is not service-connected by the VA.

     b.  The ARBA clinical psychologist/medical adviser determined there is insufficient 
evidence to show the applicant had a behavioral health condition while in service.  His 
VA listed diagnosis of PTSD is not service-connected.  At most, the applicant may have 
had an adjustment disorder while in service, although not documented; however this 
does not mitigate the basis for separation.  There is no medical mitigation.  The Board 
could upgrade his discharge based on compassion or time since his discharge.  A copy 
of the complete medical advisory was provided to the Board for their review and 
consideration.

13.  The applicant was provided a copy of the advisory opinion on 25 February 2020 
and given an opportunity to submit comments, but he did not respond.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted. The Board carefully considered the applicants request, supporting 
documents, evidence in the records, a medical advisory opinion and published DoD 
guidance for liberal consideration of discharge upgrade requests.  The Board 
considered the applicant's statement, his record of service, the frequency and nature of 
his misconduct, and the reason for his separation.  The Board considered the medical 
records, VA documents, and conclusions of the advising official.  The Board noted the 
applicant’s PTSD diagnosis was not service-connected by the VA.  The Board 
concurred with the medical advisory opinion finding insufficient evidence of in-service 
mitigating factors to overcome the misconduct.  The applicant provided no evidence of 
post-service achievements or letters of reference in support of a clemency 
determination.  Based on a preponderance of evidence, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust.


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.  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.  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 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 a discharge, which 
may be warranted on equity or relief from injustice grounds.  This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs 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.  

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Chapter 13 contains policy and outlines procedures for separating individuals for 
unsatisfactory performance and provides that commanders will separate a member 
under this chapter when, in the commander's judgment, the member will not develop 
sufficiently to participate satisfactorily in further training and/or become a satisfactory 
Soldier.

	b.  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.

4.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR.  

	a.  The ABCMR begins its consideration of each case with the presumption of 
administrative regularity.  The applicant has the burden of proving an error or injustice 
by a preponderance of the evidence.  

	b.  Paragraph 2-11 states applicants do not have a right to a formal hearing before 
the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice 
requires.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20170000608


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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