ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170012601 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records) * medical treatment documents * medical appointment documents 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 that he asked for a discharge from service for intolerable treatment. He was told he would receive a general discharge. He found out at the last minute that he was receiving a discharge (under other than honorable conditions). He states that "they" accused him of stealing and using drugs, but that they had no proof. He states that he has been diagnosed with borderline personality disorder (BPD), major depressive disorder (MDD), anxiety, and a sleep disorder. He suffers from nightmares and his therapist believes he may also suffer from post-traumatic stress disorder (PTSD). 3. The applicant authored a statement requesting that the Board requests his mental and health records. He thinks that his mental state of mind pertains to his situation. He also provided various documents indicating medical appointments, medical treatment and diagnosis for medical care. 4. Review of the applicant's service records shows: a. The applicant enlisted in the Regular Army on 29 April 1986. He was trained in and held military occupational specialty 31C (Single Channel Radio Operator). a. b. He was assigned to Germany from 3 November 1986 to 30 April 1987. c. On 27 February 1987, a military police report listed him as a subject for wrongful possession of a controlled substance (hashish), wrongful use of a controlled substance (hashish), and a violation of German narcotics law. d. On 23 March 1987, he was flagged for extensive misconduct leading to three Article 15s for forgery and larceny. e. On 7 April 1987, he was titled in a criminal investigation division (CID) report for forgery and larceny of ration cards. f. On 7 April 1987, a military police report listed him as a subject for attempted suicide. He took approximately 10 to 20 flexoril tablets in an attempt to get out of the military service. g. On 7 April 1987, the unit commander's report for psychiatric examination states that he had a family background of alcoholism. He "wants out the Army." Retraining or transfer will not alleviate his trend of misconduct. The commander states that his trend of misconduct is extensive. * 4 December 1986, summarize Article 15, absent from appointed place of duty * 3 March 1987, Article 15 absent from appointed place of duty * 3 March 1987, Article 15, writing bad checks and making false statements respectively * 9 March 1987, vacation of suspension, absent from place of duty h. On 9 April 1987, a report of Mental Status Evaluation, (DA Form 3822-R) states that the applicant has a negativistic attitude towards the Army, self-destructive tendencies, and is emotional instability. He recommended that the applicant is expeditiously separated from the military. i. On 13 April 1987, the applicant underwent a mental status evaluation. His AE Form 3087 (Report of Psychiatric Evaluation) states that the applicant has a mixed personality disorder and has poor potential for rehabilitation. The examining psychiatrist recommended he is separated under the provisions of AR 635-200, Chapter 5-13. j. On 13 April 1987, he was advised of his rights for wrongful possession and use of controlled substances, forgery, larceny, and violations of lawful general regulations in which he waived. k. On 14 April 1987, CID report of investigation states that unit can initiate judicial, non-judicial, or administrative action as deemed appropriate. a. l. On 16 April 1987, the commander notified the applicant of his intent to separate him for commission of a serious offense (abuse of illegal drugs). On the same date, the applicant acknowledged receipt of the commander's intent to separate him. On 17 April 1987, he consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He waived consideration of his case by an administrative separation board, waived his right to appear before such board, and elected not to submit statements in his own behalf. He acknowledged he understood: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State law m. On 17 April 1987, subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation (AR) 635-200 due to misconduct – commission of a serious offense (abuse of illegal drugs). The chain of command recommended a discharge under other than honorable conditions. n. On 28 April 1987, the applicant accepted nonjudicial punishment (NJP) for wrongfully possessing cocaine. o. On 28 April 1987, consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12c of AR 635-200 by reason of misconduct (commission of a serious offense) and directed issuance of an under honorable conditions discharge. The applicant was discharged on 1 May 1987. p. The DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects separation date as 1 May 1987. He was discharged by reason of misconduct under the provisions of chapter 14, AR 635-200, paragraph 14-12c with his service characterized as under other than honorable conditions. This form shows the applicant's 1 year and 3 days of active service. 5. On 7 November 2017, the Army Review Boards Agency clinical psychologist reviewed the applicant’s case and rendered an advisory opinion. The psychologist stated based on thorough review of available medical records, there is evidence the applicant engaged in a pattern of misconduct during his time in service and his behavioral health conditions are not reasonably related to the misconduct which led to his separation. This observation does not negate his post-service behavioral health diagnoses or treatment; however, there is no evidence that a behavioral health 1. condition mitigated his misconduct or that his post-service diagnoses warrant a change to his characterization of service. 6. The applicant responded to the medical advisory opinion and stated: * Everything in the report was untrue; there was no bad checks, no forgery, no drugs, no larceny, no suicide, no meetings with mental health doctor, no drinking problem, and no anti-social behavior * The Board is cycling the wagon to avoid admitting the wrong; it is all lies * The person who authored the advisory opinion did not have the courage to put their name in the report 7. By regulation, Soldiers are subject to separation for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 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 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 a short term of service with multiple UCMJ offenses, as well as the medical advisory’s finding that no evidence that a behavioral health condition mitigated his misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/16/2019 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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, provides 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. c. Chapter 14 establishes police and prescribed procedures for separating personnel for misconduct. Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 3. 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. 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; 1. 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. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates 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 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.