ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: AR20170004125 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge from the U.S. Army Reserve (USAR) * a personal appearance before the Board 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) * Psychiatric evaluation * Inpatient Records * Police Record from Commonwealth of Pennsylvania * Court Documents from Chester County, Pennsylvania * Certificate for therapy from the Star Day Services Program 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 he was never given the opportunity for a medical/psychiatric discharge for the diagnosis of depression, alcoholism, pedophilia, and personality disorder (not otherwise specified). He was symptomatic while in the service of the USAR. He contacted his Congressman seven times; he asked to be moved twice. He also submitted an application to the Army Discharge Review Board (ADRB) on 21 June 2016 to upgrade his under other than honorable discharge. He would like to offer the Army an apology, because he had thought he was discharged while he was incarcerated from 2012 to 2013, but he was discharged in 2014. However, he still feels that the Army could have done a better job at helping him with his situation. For example, he says he disclosed his episode in California, but his unit did not inform the Army of his mental state when it was appropriate to do so. 1. 3. The applicant provides a psychiatric evaluation and a diploma for therapy from Carelink Star Program. He also provides the inpatient records for his depressive episode when he was on active duty assignment in Concord, CA. In addition, he submits his criminal record and court documents. 4. A review of the applicant's service records shows the following: a. He enlisted in the USAR on 22 December 2006 for a period of 8 years. b. He served as a 31B (Military Police) with the 430th Military Police Detachment. c. On 22 February 2013, the unit commander notified the applicant of initiation of separation under the provisions of chapter 12-2, Army Regulation (AR) 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) by reason of misconduct - commission of a serious offense of stalking and corruption of a minor. The applicant did not sign the paperwork as he was incarcerated. He was notified via certified mail. d. On 22 February 2013, he was advised of his rights for the contemplated action to separate him for commission of a serious offense and that he may expect to encounter substantial prejudice in civilian life if his service was characterized as general (under honorable conditions) or (under other than honorable conditions). He may be ineligible for many or all benefits as a veteran under both Federal and State laws. The applicant did not sign the above said documents as he was incarcerated and he was notified via certified mail. e. On 24 April 2013, the unit commander subsequently recommended the applicant's separation from the service, and on 12 July 2013, the intermediate commander recommended approval of the separation action with an under other than honorable conditions discharge. f. On 5 October 2014, the separation authority approved the applicant's separation, waiver of further rehabilitative efforts, and directed he be discharged with an under other than honorable conditions discharge and reduced to private E-1. g. On 16 October 2014, Orders 14-282-00044 reflect he was discharged from the USAR under other than honorable conditions under provisions of AR 135-178, chapter 12-2 for conviction by a civil court. He was reduced to private E-1. h. The applicant applied to the ADRB for a discharge upgrade. However, on 9 December 2016, the ADRB determined that he was properly and equitably discharged and denied his request 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 18 April 2017. The medical professional opined: a. There is no adequate behavioral-health evidence to upgrade this applicant's discharge or to mitigate his misconduct. b. It is unknown if the applicant's mental health conditions were considered at the time of his discharge from the Army. The applicant did meet medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the Applicant's era of service. c. There is no evidence of a mental health consideration(s) that bears on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 7. By regulation (AR 135-178), a Soldier is subject to discharge when initially convicted by civil authorities, or action is taken that is tantamount to a finding of guilty. Chapter 2 provides guidance of notification procedures when Soldiers are absent or in the hands of civil authorities the discharge may be executed regardless of absence, and highlights the circumstances when a discharge certificate will not be issued: * Where service is characterized as under honorable conditions, general, or under other than honorable conditions * Where service is uncharacterized * On discharge for immediate reenlistment * On discharge from a cadet status on appointment as an officer or warrant officer 8. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 9. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 10. 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. 1. 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 of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/8/2019 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 (AR) 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), in effect at the time, established policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR). Paragraph 12-2a states that a Soldier is subject to discharge when initially convicted by civil authorities, or action is taken that is tantamount to a finding of guilty. When a punitive discharge would be authorized for the same or a closely related offense under the Uniform Code of Military Justice, or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation. If the sole basis for discharge is conviction of a civil offense, counseling and rehabilitative efforts are not required prior to initiation of discharge action. a. Paragraph 2-9a (Honorable discharge) 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 2-9b (General, under honorable conditions discharge) is appropriate when the Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. c. Paragraph 2-9c (Under other than honorable conditions discharge) is appropriate only when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security reasons. 3. AR 635-40, sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of this regulation are to: a. maintain effective and fit military organization with maximum use of available manpower. b. provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability. a. c. provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement 5. 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 PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. 6. 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; TBI; 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 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 that misconduct which led to the discharge. 7. 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. 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. 6