ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170005753 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email from National Personnel Records Center (NPRC) 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 is requesting an upgrade as a result of actions determined to be the result of post traumatic stress disorder (PTSD). While on active duty, his friend killed himself in front of him. When he was young and in Panama, he rose through the ranks quickly and excelled in the Army until that point. He was airborne and, supported his country with pride. When it comes time to be laid to rest, all he desire is to have beautiful old glory draped across his casket, just as his father. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 4. A review of the applicant’s records show: a. He enlisted on 29 June 1976 in the Regular Army (RA). b. He served overseas in the Panama Canal Zone for 5 months and 1 day. c. The applicant's DD Form 214 (not legible), item 27 (Remarks) shows that he was absent without leave (AWOL) from 31 March 1977 to 1 May 1977. d. The facts and circumstances surrounding the applicant’s court martial are not available for the board to review. A thorough review of the integrated Personnel a. Electronic Records Management System (iPERMS) and the Integrated Web Services (IWS) system also failed to contain any records. e. On 20 May 1977, he was discharged from active duty under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 with an under other than honorable conditions characterization of service. He had 9 months and 21 days of active duty service. He had 31 days of lost time from 31 March 1977 through 1 May 1977. 5. An advisory opinion was received from the Army Review Boards Agency on 16 November 2017 in the processing of this case. The medical advisor/psychologist stated the following: a. The applicant lacked information about the type of misconduct and also had no relevant evidence about in-service or post-service behavioral health diagnoses, if any. b. The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) that were applicable to the Applicant’s era of service. c. Available case material did support the existence of a mitigating mental health condition at the time of his misconduct. It is unknown if the applicant’s mental-health conditions were considered at the time of his discharge from the Army. d. Available records did not include an exit medical exam required by Title 10, Section 1177. e. Based on available behavioral-health evidence, the applicant’s current post traumatic stress disorder (PTSD) and other mental problems mitigates at least a portion of his misconduct (absent without leave (AWOL), and the like), but would not mitigate more serious planned, intentional or violent offenses (drug dealing, violent acts, grand theft) if any exist. f. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He did not respond. 1. 7. By regulation (AR 635-200) an individual who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Conditions Certificate will normally be furnished to an individual who is discharged for the good of the service. 8. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION ror or d the overall merits of this case are insufficient the individual concerned. 5/31/2019 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel a. Paragraph 1-13 (Honorable discharge) states 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. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) 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. c. Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service a. d. Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. 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. 4. 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. //NOTHING FOLLOWS//