ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170016071


APPLICANT REQUESTS: an upgrade of his under other than honorable discharge conditions to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Copy of medical records

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 would like an upgrade to his discharge from under other than honorable conditions to an honorable discharge.  He feels that the Army failed to diagnose his mental condition.  He suffers from anxiety, depression and post-traumatic stress disorder which caused his bad judgment.  The reason for the delay in filing is because he did not know he could apply for an upgrade.

3.  The applicant provides:

	a.  Physical examination conducted on 1 September 1998, where-in the applicant was evaluated for a migraine headache. 

	b.  Clinical record and doctors’ orders dated 1 September 1998 admitting him to the intensive care unit for mental status change and possible tricyclic (anti-depressant) overdose.

	c.  Discharge summary that shows on 3 September 1998, the applicant was discharged from the following treatment plan: discharge diagnosis mental status change; follow up with Brigade surgeon for migraine treatment; and  make an Intake appointment at the mental health clinic in one week.
	d.  Psychological and Neuropsychological assessments, dated 2 September 2015 with a physician diagnosis of panic disorder, depressive disorder, depressive personality disorder and dependent personality disorder with avoidant and compulsive features.  The recommended treatment for the applicant:

* psychotropic medication
* individual therapy
* training in stress management techniques
* future testing after his condition has stabilized for the most accurate diagnosis
* monitoring of prescribed medication with a re-evaluation once a final diagnosis has been made

4.  A review of the applicant’s service record show the following:

	a.  He enlisted in the Regular Army on 17 September 1997.

	b.  On 16 September 1998, he departed his Fort Lewis, WA, unit in an absent without leave (AWOL) status and on 16 October 1998, he was dropped from the rolls as a deserter.  He returned to military control on 14 April 1999.  

	c.  Court martial charges were preferred on 20 April 1999.  His DD form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL from 16 September 1998 to 13 April 1999.

	d.  On 20 April 1999, he consulted with legal counsel, who 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 martial in accordance with chapter 10, Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel).  In his request for discharge, he acknowledged:

* 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 if such a discharge was accepted 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

	e.  On 29 November 1999, his chain of command requested approval to discharge the applicant under the provisions of AR 635-200, chapter 10 (in lieu of trial by court-martial) with an under other than honorable condition discharge.

	f.  On 10 January 2000, the separation authority (a general court martial convening authority) approved his request for discharge under the provisions of AR 635-200, chapter 10, ordered him reduced to E-1 (if applicable), and issued an Under Other Than Honorable Conditions Discharge Certificate.

	g.  On 12 July 2000, he was discharged from active duty.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 2 years, 2 months, and 26 days of active service, and he had 210 days of lost time.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Sharpshooter-Marksmanship Qualification Badge (M9mm)
* Expert- Marksmanship Qualification Badge with Hand Grenade Bar

5.  On 21 October 2017, the Army Review Boards Agency psychiatrist rendered an advisory opinion that stated based on the available information the applicant’s PTSD NOS (not otherwise specified) and Personality Disorder, while distressful, do not mitigate the applicant’s offense of AWOL.  The advisory further states that there is insufficient evidence to support the applicant’s contention that his misconduct was due to undiagnosed and untreated PTSD he developed while in the Army.  

6.  On 2 November 2017, the applicant was provided with a copy of the his advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

7.  By regulation, a person who has committed an offense or offenses, the punishment for which, under the uniform code of military justice and the military court martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial.  The discharge request may be submitted after court-martial charges are preferred against the Solider, or, where required, after referral until final action by the court-martial convening authority.

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 the relatively short term of service completed prior to the lengthy AWOL offense, as well as the medical advisory’s finding that the medical condition did not mitigate the 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.
	 
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 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.  When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability.

	c.  Chapter 10 of this regulation states a person who has committed an offense or offenses, the punishment for which, under the uniform code of military justice and the military court martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial.  The discharge request may be submitted after court-martial charges are preferred against the Solider, or, where required, after referral until final action by the court-martial convening authority.

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 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

ABCMR Record of Proceedings (cont)	 AR20170016071


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