ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170013913 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to honorable or to general under honorable conditions. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 21-0960P-2 (Mental Disorders Disability Benefits Questionnaire) * VA Progress Note, dated 25 July 2017 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 (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 military service was incorrectly evaluated. The character of his service eventually became poor, however if it had not been for his undiagnosed disorders at the time, he would not have behaved the way he did. While in the military, his leadership associated his behavior as being caused by a failure to conform to military standards and did not realize he was displaying symptoms of paranoid schizophrenia. He has since been diagnosed with paranoid schizophrenia and chronic depressive disorder. This was not discovered until after his discharge. The cause of his constant behavioral issues was a result of untreated mental disorders which he was suffering during service. The symptoms first began while he was in the military and at an age where medical studies have confirmed is the most common age group for symptoms of these disorders to first surface. 3. The applicant enlisted in the Regular Army on 26 September 1977. 1. 4. His records show he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 3 January 1980 for five specifications of failing to go at the time prescribed to his appointed place of duty 5. On 4 March 1980, the applicant was found guilty by a special court-martial of: * ten specifications of failing to go at the time prescribed to his appointed place of duty * three specifications of willfully disobeying the order of a superior commissioned officer by not getting a haircut and reporting to that commissioned officer; failing to report to duty; and failing to report to a sergeant first class * six specifications of willfully disobeying the order of a superior noncommissioned officer by failing to type two pieces of correspondence; failing to remove rank insignia of private first class from his uniform; failing to report to his duty section on two occasions; and failing to report to medical appointments on two occasions * one specification of breaking restriction 5. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was transferred to the U.S. Army Retraining Brigade, Fort Riley, Kansas on 20 March 1980 to undergo correctional training. 6. The applicant's records further show that while assigned to the U.S. Army Retraining Brigade, he received NJP under the provisions of Article 15, UCMJ, on 17 April 1980 and on 5 May 1980 for being absent from his place of duty without authority. 7. On 20 May 1980, the applicant’s commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct due to his involvement in frequent incidents of a discreditable nature. The commander stated the applicant was sent to the Retraining Brigade for the purpose of receiving correctional training and treatment as necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation. However, his actions precluded accomplishment of the objective as evidenced by the extensive counseling and incident reports related to his negative behavior, attitude, and ability. The commander further indicated the applicant had failed to respond to numerous counseling sessions and attempts by leadership teams and professional staff agencies. He also opined that the applicant’s failure to react constructively to the rehabilitation program were indicative that he should not be retained in the service. 8. On 22 May 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 14. 5. * he waived consideration of his case by a board of officers * he acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he acknowledged he understood that as a result of issuance of a discharge under conditions other than honorable he could be ineligible for many or all benefits as a veteran under both Federal and State laws 9. On 1 June 1980, the separation authority approved the recommendation for separation and directed the issuance of an under other than honorable conditions discharge. On 6 June 1980, he was discharged accordingly. 10. The Army Discharge Review Board denied his request for an upgrade of his discharge on 18 January 1996. 11. On 17 November 2017, the Army Review Boards Agency psychologist/medical advisor provided an advisory opinion. The advisory found the available documentation showed sufficient 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 had mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 28 November 2017 and given an opportunity to submit comments. He did not respond. 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 warranted. Based upon the finding of the medical advisory stating that sufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. 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 upgrading the applicant’s discharge to Under Honorable Conditions (General). 5/1/2019 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 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 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record. A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter. 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 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 1. 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.