ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20170001120 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions (UOTHC) to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Letter, Department of Veterans Affairs (VA) Cumberland Community Based Outpatient Clinic, dated 15 November 2019 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a stated an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-13b stated a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. The separation authority could direct issuance of a general discharge if such were merited by the Soldier's overall record. A discharge UOTHC was normally considered appropriate for Soldiers discharged under this chapter. Paragraph 14-33b(1) stated members were subject to separation under the provisions of this section for frequent incidents of discreditable nature with civil or military authorities. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. Although the Department of Defense acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 4. 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, 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs 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 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. 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 has a very close, protective relationship with his sister due to childhood trauma. His sister was in a car accident and was paralyzed. He felt obligated to be with her. His platoon sergeant assured him it was okay to leave; however, the captain out ranked him and denied his leave and disciplined him. The captain repeatedly harassed him and was eventually relieved from his duty. Between his harassment and the situation at home, he mentally could not handle things anymore. He was referred to a psychiatry provider when he was still serving on active duty. He left his unit a few times within a 3 or 4-month period, but eventually felt he could not return. Prior to all of this, he was a model Soldier and never had any problems. 3. He enlisted in the Regular Army on 6 March 1980 for a period of 3 years. 4. His records contain a DA Form 4856 (General Counseling Form), dated 1 December 1980, showing he received counseling for his attitude. For a few months he had a very poor attitude. His appearance was below standards and he was not following military courtesy when addressing noncommissioned officers and officers in his division. 5. On 1 February 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for willfully disobeying and being disrespectful to a noncommissioned officer. His punishment included forfeiture of $125.00 pay (suspended until 17 March 1981) and 10 days of extra duty and restriction. He did not appeal. 6. His records contain a DA Form 3975 (Military Police Report), dated 20 March 1981, showing he reported to the station that he was absent without leave (AWOL). He was AWOL from on or about 17 March 1981 until 20 March 1981. He was apprehended, advised of his rights, and transported to his unit. 7. On 15 April 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the prescribed time to his appointed place of duty on 17 March 1981. He was placed in a correctional custody facility for 7 days. He did not appeal. 8. His records contain DA Forms 4187 (Personnel Action), dated 3 and 5 May 1981, showing he was AWOL from 1 through 5 May 1981. 9. His records contain a DA Form 3975, dated 20 May 1981, showing he called the station to report he was AWOL and wanted to surrender. 10. His DA Forms 4187 and DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Part 1) – Record of Court-Martial Conviction) show his duty status changes as follows: * 13-25 May 1981 – AWOL * 13 June 1981 – AWOL * 15 June 1981 – dropped from the rolls * 7 July 1981 – present for duty 11. On 20 July 1981, his immediate commander notified him that he was being recommended for elimination from military service for misconduct under the provisions of Army Regulation 635-200, chapter 14. 12. On 20 July 1981, he acknowledged receipt of his immediate commander's intent to recommend him for separation. He was advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers and a personal appearance before a board of officers. He did not submit a statement in his own behalf. He waived representation by military counsel or civilian counsel at his own expense. He acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He further understood that, as the result of issuance of a Discharge Certificate UOTHC, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life. He understood that he could withdraw this waiver and request that a board of officers hear his case up until the date the discharge authority ordered, directed, or approved his discharge. He further understood that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge. 13. Headquarters, 1st Brigade, 101st Airborne Division (Air Assault), Fort Campbell, KY, Summary Court-Martial Order Number 25, dated 23 July 1981, shows: a. He pled guilty to the following three specifications: (1) without authority, absenting himself from his unit from 1-5 May 1981; (2) without authority, absenting himself from his unit from 13-25 May 1981; and (3) without authority and with intent to remain away permanently, absenting himself from his unit from 13 June-7 July 1981. b. The court found him guilty of all specifications. His sentence was adjudged on 20 July 1981 and he was sentenced to confinement at hard labor for 30 days, forfeiture of $334.00 pay per month for 1 month, and reduction to private/E-1. There were no previous convictions considered. c. The convening authority approved and ordered his sentence executed. d. On 29 July 1981, the Office of the Staff Judge Advocate, Fort Campbell, KY, examined the record of trial and found the findings and sentence as approved to be correct in law and fact. 14. On 19 August 1981, his intermediate commander recommended his separation. 15. On 21 August 1981, his senior commander recommended his discharge for misconduct and a waiver of a rehabilitative transfer. 16. On 4 September 1981, the separation authority waived a rehabilitative transfer per Army Regulation 635-200, paragraph 13-8b. He directed the applicant's discharge under the provisions of Army Regulation 635-200, paragraphs 14-33b(1) and 14-38e, with assignment of separation program designator code JKA (Discreditable Incidents – Civilian or Military) and issuance of a Discharge Certificate UOTHC. 17. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 September 1981 for frequent involvement in incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-200, paragraph 14-33b(1). He completed 1 year, 5 months, and 24 days of net active service during this period with 16 days of lost time. His service was characterized as "Under Under [sic] Honorable Conditions [should read Under Other Than Honorable Conditions]." 18. He provided a letter from the VA Cumberland Community Based Outpatient Clinic, dated 15 November 2019, stating the applicant was diagnosed with major depression without psychosis. The applicant reported he was experiencing depressive episodes on and off throughout his life since his service in the military. He also reported he had difficulties adjusting to military life after being assigned to serve under a particular officer. ·The applicant described himself as a model Soldier until encountering harassment by this individual. He does not meet diagnostic criteria for post-traumatic syndrome disorder (also known as post-traumatic stress disorder) secondary to trauma as a result of harassment, but has been formally diagnosed by VA mental health clinicians as experiencing major depression. 19. On 6 March 2020, the Army Review Boards Agency Psychologist rendered an advisory opinion in the processing of this case. The applicant's ABCMR application, military and military medical records, and his electronic VA medical record were reviewed. The electronic military medical record was not in use at the time of his discharge. a. A review of the applicant's electronic VA medical record indicated he started receiving services through the VA in December 2015. He was diagnosed with major depressive disorder on 22 January 2018. He reported negative emotions and anger due to "being treated unfairly or taken advantage of by family." He reported a history of "getting mad and stays mad" and has been "cheated by employers" all the years he worked as a long-distance truck driver. The provider noted he does not meet diagnostic criteria for PTSD. He does not have a service-connected disability rating. b. Per the 3 September 2014 Secretary of Defense liberal guidance memorandum and the 25 August 2017 clarifying guidance, there was no documentation to support a behavioral health diagnosis at the time of his discharge. Based on medical and psychiatric evaluations conducted within 30 days of his discharge, he met retention standards at the time of discharge. While he was diagnosed with a major depressive disorder in 2018, there is no indication he had the diagnosis at the time of his service. In addition, a major depressive disorder would not be a mitigating factor in the misconduct that led to his discharge. 20. On 13 March 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. 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, VA documents submitted by the applicant, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. 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 PTSD, 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 :XX :XXX :XXX 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001120 8 1