DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 12 February 2021 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20170009966 The application submitted by the individual concerned has been denied by the Deputy Assistant Secretary of the Army (Review Boards). BY ORDER OF THE SECRETARY OF THE ARMY: 02/12/2021 Encl CF: ( ) OMPF Printed on Recycled Paper ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 September 2020 DOCKET NUMBER: AR20170009966 APPLICANT REQUESTS: reconsideration of his DD Form 214(Certificate of Release or Discharge from Active Duty) upgraded from under other than honorable to general so that he can receive health care and compensation from Veterans Affairs. He requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20020005603 on 5 June 2008. 2. The applicant states it was not his fault for getting other than honorable discharge. He states he was treated for mental health. 3. The applicant provides his medical records extracts for health care from 17 March 1980 to 21 March 1980. 4. The applicant service record shows: a. He enlisted in the Regular Army on 17 October 1979. b. Medical records extracts with medical annotations regarding the applicant from 17 March 1980 to 21 March 1980. c. His DD Form 458 (Charge Sheet) dated 5 January 1982 shows he was charged with one specification of absent himself from his unit on or about 21 March 1980 to 29 December 1981. d. On 6 January 1982, he consulted with legal counsel. Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request for discharge, he acknowledged on 6 January 1982: * he was making the request of his own free will and he had not been subjected to any coercion * by submitting this request, he was acknowledging he was guilty of the charge(s) against him or a lesser included offense * he understood that if the discharge request was accepted he could be furnished an under other than honorable discharge * he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * have been advised that he may submit any statements he desire in his behalf, which will accompany his request for discharge. Statements in his own behalf were not submitted with this request * he hereby acknowledged receipt of a copy of this request for discharge and of all enclosures submitted herewith. * he does not desire a physical evaluation prior to separation e. Consistent with the chain of command's recommendation, on 1 February 1982 the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. Reduce to the lowest enlisted grade. f. DD Form 214 (Certificate of release or Discharge from Active Duty) reflects that on 12 February 1982, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He had 1 year 5 months and 12 days of active duty service. He had lost time from 7 February 1980 to 13 March 1980 and 21 March 1980 to 28 February 1981 g. On 9 June 2008 the application submitted by the individual concerned has been denied by the Army Board for Correction of Military Records AR20080005603 Board Proceedings. He was given a mental health evaluation and no issues were found. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 6. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate 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. 7. 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 DOD guidance. 8. By regulation (AR 15-185 - ABCMR), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 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 they could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was warranted. One potential outcome discussed was to deny relief based upon the short term of honorable service completed prior to the lengthy AWOL offense leading the applicant’s separation. However, based upon the submitted documentation by the applicant, the Board found there was sufficient evidence to show that the applicant was diagnosed with a behavioral health condition that existed prior to service and a secondary condition determined to have been in the LOD which may have resulted in him going AWOL and thus being separated from the service. As a result, the Board recommended upgrading the characterization of service of the applicant to General, Under Honorable Conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). X CHAIRPERSON 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. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states 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. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An under other than honorable discharge certificate 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. 2. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of- disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 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; 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 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 that misconduct which 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. 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. By regulation (AR 15-185 - ABCMR), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The application has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing a request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicant’s do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires //NOTHING FOLLOWS//