ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 March 2020 DOCKET NUMBER: AR20170004608 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to honorable. 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) * Letter, dated 11 January 2017 * HFL Form 222-DSCHO (Commander's Request for Mental Status Evaluation), dated 26 June 1984 * Four DD Forms 4187 (Personnel Action) (duty status changes) * DD Form 458 (Charge Sheet), dated 3 August 1984 * Memorandum, Combat Support Company, 3d Battalion, 60th Infantry Regiment, undated, subject: Court-Martial Charges in the Case of United States versus (Applicant) * 1st Indorsement, Headquarters, 3d Battalion, 60th Infantry Regiment, undated, subject: Court-Martial Charges in the Case of United States versus (Applicant) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letters, Treating Physician, dated 16 March 2014 and 14 December 2016 * Nuclear Medicine Brain Single-Photon Emission Computed Tomography, dated 29 August 2016 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 3-7a provided that an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a Soldier upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty training, or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. When a Soldier is discharged before expiration of term of service for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court- martial or actions under Article 15 of the Uniform Code of Justice (UCMJ). Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. An honorable discharge may be furnished when disqualifying entries in the Soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. Unless otherwise ineligible, a Soldier may receive an honorable discharge if he or she has, during his or her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration. b. Paragraph 3-7b provided 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 3-7c, provided that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: (1) when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army; or (2) when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. d. Chapter 10 provides that a member who has committed an offense or offenses, the punishment for any of which, under the UCMJ and the Manual for Courts-Martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A Discharge Certificate under Other Than Honorable Conditions normally is appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. 3. 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. 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 his DD Form 214 shows he was completing all service requirements to standard, such as Ranger and Airborne schools, and received an Army Achievement Medal until he suffered an injury to his head. A review of the evidence attached will show he was diagnosed with a traumatic brain injury (TBI) and that his change in performance happened shortly after his injury that occurred while in service. He provided a self-authored letter of his achievements and the consequences of his TBI injury (detailed letter enclosed for review). 3. On 26 June 1984, the applicant's immediate commander referred him to the Community Mental Health Activity for a mental status evaluation in consideration of separation under the provisions of Army Regulation 635-200, paragraph 14-12b. His commander noted the applicant complains of nervous breakdowns; drug-induced psychosis was evident; the applicant was admitted to Ward 17, and the applicant requests an administrative discharge. The applicant was pending field-grade nonjudicial punishment under Article 15, UCMJ, for drug abuse. 4. On 29 June 1984, nonjudicial punishment was imposed against him under Article 15, UCMJ, for knowingly and wrongfully using marijuana. His punishment included reduction in rank to specialist, forfeiture of $412.00 per month for 2 months, and 45 days of extra duty. He appealed and did not submit additional matters in his own behalf. The approval authority denied his request. 5. The DA Forms 4187 provided by the applicant and from his military record reflect his duty status changes as follows: * 9-16 July 1984 – absent without leave (AWOL) * 17 July 1984 – present for duty (PDY) * 18 July 1984 – AWOL * 19 July 1984 – PDY * 19 July 1984 – confined by military authorities 6. The DD Form 458, dated 3 August 1984, shows court-martial charges were preferred against him for: * specification 1 – absenting himself from his unit without authority on or about 9 July 1984 at 0900 hours and remaining so absent until on or about 16 July 1984 at 0930 hours * specification 2 – absenting himself from his unit without authority on or about 18 July 1984 at 0630 hours and remaining so absent until on or about 19 July 1984 at 1600 hours * specification 3 – failing to go at the time prescribed to his appointed place of duty on or about 16 July 1984 at 1800 hours * specification 4 – failing to go at the time prescribed to his appointed place of duty on or about 17 July 1984 at 0630 hours * specification 5 – failing to go at the time prescribed to his appointed place of duty on or about 17 July 1984 at 1800 hours 7. His immediate and intermediate commanders recommended his trial by a special court-martial empowered to adjudge a bad conduct discharge. 8. His records contain no evidence of a head injury resulting in a TBI. 9. His complete discharge packet is not available for review. 10. On 9 August 1984, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of a Discharge Certificate under Other Than Honorable Conditions. 11. On 23 August 1984, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 3 years and 18 days of net active service with 8 days of lost time. His service was characterized as under other than honorable conditions. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Army Achievement Medal * Parachutist Badge * Ranger Tab * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 12. The applicant provided a letter from his treating physician, dated 16 March 2014, who stated he began treating the applicant in February 2001 for bipolar disorder. The physician recounts the applicant's reported military history and subsequent civilian experiences. The physician stated the applicant developed bipolar disorder while in the military service, leading to a psychiatric hospitalization. He had no prior history of psychiatric problems. The diagnosis was sufficient to lead to a medical discharge, which would have occurred in due time had he not become involved in the circumstances that culminated in being pressured to accept a general discharge. 13. The applicant provided his Nuclear Medicine Brain Single-Photon Emission Computed Tomography, dated 29 August 2016. The examining physician found decreased tracer perfusion in the right temporal lobe and also a heterogeneous perfusion in the bilateral parietal and posterior frontal lobes. The cerebellar hemispheres are symmetrically perfused. The examining physician noted that in the correct clinical settings, this may reflect sequela of TBI. 14. The applicant provided a letter from his treating physician, dated 14 December 2016, who stated the applicant is in treatment with him for bipolar disorder. The applicant has a history of multiple head injuries, some of them sports related from high school. However, the most severe head injuries occurred during his military service. The history makes it clear that he suffered significant TBI in the course of these injuries. The Nuclear Medicine Brain Single-Photon Emission Computed Tomography, dated 29 August 2016, shows blood flow in the brain and the test is the best imaging study for identifying TBI. His scan shows clear evidence of perfusion abnormalities that are characteristic of TBI. 15. On 4 March 2020, the Army Review Boards Agency Psychologist rendered an advisory opinion in the processing of this case. The psychologist concluded the review of the applicant's civilian medical records indicates diagnoses of bipolar disorder and TBI. The applicant has been involuntarily hospitalized multiple times due to manic state. Per his psychiatrist, he has been compliant with his medication regimen since 2004. Per the 3 September 2014, Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, there is documentation supporting a behavioral health diagnosis at the time of his discharge. It is more likely than not that the applicant was experiencing symptoms of bipolar disorder (manic episodes) while serving on active duty. It is more likely than not that he did not meet retention standards at the time of his discharge. He was stabilized during his inpatient admission and soon after discharged from the Army before a subsequent manic episode occurred. Had he remained on active duty longer, a subsequent episode would likely have led to the diagnosis of bipolar disorder, meaning he would not have met retention standards. Given his 2 years of service with no difficulty and misconduct behavior around the time of his psychiatric hospitalization, the onset of bipolar disorder would be a mitigating factor for the misconduct that led to his discharge. 16. On 13 March 2020, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records 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, the preferred charges, his request for discharge and the reason for his separation. The Board considered post-service medical records and the review and conclusions of the medical advising official. The Board found sufficient evidence of in-service mitigation to overcome the misconduct. Based on a preponderance of evidence, the Board determined that a correction of the character of service the applicant received upon separation was appropriate. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period ending 23 August 1984 to reflect in item 24 (Character of Service ) – “Honorable” vice “Under other than honorable conditions.” 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. ADMINISTRATIVE NOTE(S): not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170004608 7 1