IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20170001450 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. Due to his mental state at the time of his discharge from Army, as a result of his sister’s tragic death, he was not able to make the right choices. The applicant and his sister were only 11 months apart in age. They both joined the military at about the same time. He asked for help but no one gave him any help while he was in the Army. b. All the information is in his military record about his mental state. The mental breakdown of his mother and his need to help her is also in his military record. The applicant and his sister were very close because of the abuse in their home growing up. His sister became his protector. He joined the military at the age of 17 years old in hopes for a better life. His sister joined for the same reasons. When his sister died he lost all hope for life and did not want to live. c. The reason he asked for a hardship transfer was because of his mother’s state of mind. He was not able to help her because of his state of mind. He had nowhere to turn and no one to talk too. He did not know how to get help until now. He would stay in his barracks because he did not want to walk through the door. When he would go out he would climb up the wall to keep from going through the door. All of this information is in his records. d. On 9 June 1979, his sister died, and on 30 August 1979 he reported to active duty, but he was emotionally and mentally unstable. He was unable to deal with life and make good decisions because of his sister’s death. Before his sister died his record of service was good. After her death he had no write ups. He tried committing suicide on two occasions. While in the Army no one reached out to him and tried to help. 3. On 3 May 1978, the applicant enlisted in the Florida Army National Guard, and at the age of 18 years old he was ordered to active duty on 30 August 1979. 4. A review of the applicant’s service record shows he was absent without leave (AWOL) from 13 to 27 November 1979 and 7 January to 11 March 1980. 5. On 18 March 1980, court-martial charges were preferred against the applicant for being AWOL from on or about 7 January to 12 March 1980. 6. On 19 March 1980, the applicant voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, its effects, and of the procedures and rights available to him. He elected not to submit statements in his own behalf. b. The applicant was medically cleared for administrative separation action deemed necessary by his chain of command. c. His chain of command recommended approval of his discharge request under other than honorable conditions and indicated the applicant stated, in pertinent part, his approximate 65 days of AWOL were caused by family problems. He was activated into the Army for his lack of attendance at his Reserve Summer Camp. After approximately four months his sister died and he requested a compassionate reassignment in order to be home with his family. The compassionate reassignment was disapproved and as a result he went AWOL. The applicant was asked if he would like to stay in the Army and defend his AWOL and he said that he needed to be home now as his mother was mentally ill and needed his help. d. The Chief, Criminal Law Division recommended approval of the applicant’s request to be discharged. e. The separation authority approved the applicant’s request to be discharged for the good of the service and directed he be furnished a UOTHC Discharge Certificate. 7. On 15 April 1980, the applicant was discharged accordingly. He completed 4 months and 26 days of net active service this period. He had lost time from 13 to 27 November 1979 and 7 January to 11 March 1980. He was not awarded a personal decoration. 8. On 17 March 1982, the applicant was notified that the Army Discharge Review Board denied his request for an upgrade of his discharge. 9. On 1 April 2019, the Army Review Boards Agency requested medical records/documents from the applicant to support his stated issues. He did not respond. 10. On 23 January 2020, the Army Review Boards Agency Psychologist reviewed the applicant’s case and provided an advisory opinion. The medical advisor stated, in pertinent part, in accordance with (IAW) the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there is no documentation to support the existence of a behavioral health condition at the time of the applicant’s discharge. The available records indicate that the applicant did meet medical retention standards IAW Army Regulation 40-501 (Standards of Medical Fitness). There is no behavioral health condition to consider with respect to mitigation of the misconduct that led to the applicant’s discharge. 11. On 27 January 2020, the applicant was provided a copy of the medical advisory opinion to allow him an opportunity for comments or rebuttal. He did not respond. 12. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 13. Army Regulation 635-200, chapter 10 stated that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. 14. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for 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 noted the facts presented above. 2. The Board noted there was no evidence that he requested assistance from the chaplain, Army Community Services, or mental health. The Board noted that he absented himself from duty without authority (AWOL) on two occasions, the second for 65 days. The Board also noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised 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 applicant's service. 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 (TBI); 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 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 misconduct that led to the discharge. 5. 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. a. 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 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001450 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170001450 6 ABCMR Record of Proceedings (cont) AR20170001450 5