ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170016908 APPLICANT REQUESTS: * reconsideration of his previous request to upgrade his other than honorable conditions discharge to honorable or general, with related changes to the narrative reason, separation code, and re-entry code * Personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) (1979) * DD Form 214 (Certificate of Release or Discharge from Active Duty) (1981) * Letter of X___ X___, MD, dated 23 March 2017 * Medical Note of X___ X___, Licensed Independent Clinical Social Worker (LICSW), date printed 28 June 2012 * Letter of X___ X___, Executive Director, Disability Law Center, dated 30 March 2015 * Letter of X___ X___, Deputy Medicaid Director, Mass Health, dated 20 October 2015 * Letter of X___ X___, City Clerk, dated 3 February 2015 * Awards and certificates of appreciation * Certificates of training * Army Board for Correction of Military Records (ABCMR) decision * Military personnel file * Service treatment records 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 AR201300144891 on 15 April 2014 2. The applicant states he volunteered to serve his country, enlisting in the Army National Guard in 1979 and then entering active duty with the Army in 1980. Physical and mental injuries prevented him from completing his term of service. Those wounds also led to a discharge under other than honorable conditions. He is asking the Board to review his discharge anew based on new facts and new law and to change his discharge characterization to honorable or general, with related changes to the narrative reason, separation code, and re-entry code. He is asking that this board grant his application for the following reasons: a. An other than honorable discharge is unjust because Post-Traumatic Stress Disorder (PTSD) and depression contributed to the misconduct that led to discharge. b. An other than honorable discharge is unjust because the Army has substantially changed mental health screening, diagnosis, and treatment since 1981, and he would not have received that discharge under today's programs and standards. c. Procedural irregularities render an other than honorable discharge erroneous. d. His post-service recovery, community service, and the passage of time render further burden of an other than honorable discharge too harsh and therefore unjust. e. The application is timely, or in the alternative the statute of limitations period should be waived in the interest of justice. f. The Board denied his earlier application but should review this application "de novo" because of changes to the law since his last application, because of guidance from the Department of Defense (DOD), and because he is submitting new evidence not previously considered. If the Board makes a preliminary determination that a claim under this section lacks sufficient information or documents to support the claim, the Board shall notify the applicant, in writing, indicating the specific information or documents necessary to make the claim complete and reviewable by the board. g. After graduating from the Boston Trade School, he enlisted in the Massachusetts Army National Guard (MAARNG) in 1979. He attended six weeks of basic training from March to June at Fort Benning, GA to become an 11B Infantryman. He was honorably discharged from active duty training on 8 June 1979, and served in the Guard for the following year. In May 1980, after being found physically and mentally fit for duty, he entered full-time active duty in the Army. He was stationed at Fort Ord, CA. He describes detailed maltreatment during a training exercise. He claims he suffered mental and physical injuries due to the maltreatment. He has now been diagnosed with depression and PTSD. He also explained the trouble he got into with his superiors. The detailed self-authored letter is attached. 3. The applicant provides: a. DD Form 214 that shows he was honorably relieved from active duty training on 8 June 1979. b. DD Form 214 that shows he was discharged under other than honorable conditions on 1 May 1981 under provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) paragraph 14-33b(1) (Patterns of misconduct). c. Letter of X___ X___, MD, dated 23 Mach 2017, in effect states the applicant has been a patient since 30 March 2015. The applicant suffers from depression before and during his time in service as well as other injuries. Also stated the applicant is a pleasant gentleman that struggles with many chronic medical and behavioral health conditions. He works hard to remain engaged with his medical and behavioral health team to improve his health. d. Medical notes of X___ X___, LICSW, diagnosing the applicant with major depressive disorder, recurrent, moderate. e. Letter of X___ X___, Executive Director, Disability Law Center (DLC), dated 30 March 2015, stating the applicant collaborated with others in advising DLC staff of the Protection and Advocacy for Individuals with Mental Illness program, policies, and priorities to be carried out in protecting and advocating for the rights of individuals with mental illness in Massachusetts. He served on this council from December 2010 through December 2014 and was an active and involved member. f. Letter of X___ X___, Deputy Medicaid Director, Mass Health, dated 20 October 2015, notifying the applicant that he was selected to serve on the Implementation Council for the Massachusetts Duals Demonstration known as One Care. The Implementation Council plays a key role in monitoring access to health care and compliance with the Americans with Disabilities Act (ADA), tracking quality of services, providing support and input to Executive Office of Health and Human Services, and promoting accountability and transparency. g. Letter of X___ X___, City Clerk, dated 3 February 2015, notifying the applicant that he has been appointed by the Mayor, as a member for the persons with Disabilities Advisory Board. h. Awards and certificates of appreciation from/for: * The Commonwealth of Massachusetts House of Representatives, commitment to improving the quality of life for individuals who are in recovery, dated 15 November 2016 * Community Recognition Event, outstanding commitment and dedication to the Mental Health Community, dated 15 November 2016 * The Fund for Brigham and Women’s Hospital, generous support, dated 18 April 2016 * Greater Boston Consumer Advocacy/Affiliate Network Metro Boston Recovery Community, Volunteer of the year 2014, dated 22 January 2015 i. Certificates of training: * Allies in Recovery: Integrating Substance Use and Mental Health Services and Supports, dated 6 April 2016 * Trauma-Informed Peer Support Training, dated 29 October 2015 * Intermediate Facilitator Training, dated 28 May 2015 * Conflict of Interest Law online training program, dated 17 April 2015 * Wellness Recovery Action Plan, dated 15 April 2015 * Whole Health Action Management, dated 4 March 2015 * Homestart one year in housing, dated December 2014 * Peer to Peer National Alliance on Mental Illness, dated 18 November 2014 * Beyond the Medical Model: Alternative Approaches to Mental Health and Illness, dated 20 June 2014 * Recovery-Focused Health: Bridging Worlds in Health Care, dated 30 April 2014 * Basic Foundations Facilitator Training, dated 24 April 2014 * Smart Money Management, dated 6 May 2013 * Leadership for Self-Growth Program, undated j. ABCMR decision, dated 17 April 2014, stating the board denied his application. Also attached is the record of proceedings. k. Military personnel file showing enlistment, handwritten counseling statements, article 15 proceedings, chapter packet extract, mental health consultations, and DD Form 214. l. Service treatment records showing medical examinations, medical history, consultation sheets, report of mental status evaluation, dental exams and x-rays. 4. A review of the applicant’s service records shows the following: a. Having had prior service, the applicant enlisted in the Regular Army on 8 May 1980. b. DD Form 2-1 (Enlisted Qualification Record) shows the applicant was absent without leave (AWOL) for the period 16 October through 15 November 1980. c. The applicant received non-judicial punishment (NJP) UP of Article 15 on or about/for: * 14 November 1980, for failing to obey a lawful order from a superior * 17 January 1981, for failing to go at the time prescribed to his appointed place of duty * 5 February 1981, for failing to go at the time prescribed to his appointed place of duty and for being absent from his place of duty * 15 February 1981, for .being absent from his place of duty from 7 January through 9 January 1981 * February 1981, for threatening to injure another Soldier d. On 26 March 1981, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14-33 (misconduct - frequent incidents of a discreditable nature with civil or military authorities) of AR 635-200. He advised the applicant of his rights. e. On 26 March 1981, the applicant acknowledged receipt of the commander's intent to separate him for misconduct. He consulted with legal counsel and acknowledged: * 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 a board of officers, a personal appearance before the board, and he elected not to submit a statement on his own behalf * he also waived representation by military counsel * he indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * he further understood 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 laws f. On 1 April 1981 , the applicant's immediate commander initiated separation action against him in accordance with AR 635-200, chapter 14, for misconduct due to frequent incidents of a discreditable nature with civil or military authorities. His intermediate commander recommended approval of the discharge action and a waiver of any further rehabilitative efforts. g. On 23 April 1981, the separation authority approved the discharge UP of AR 635-200, chapter 14, by reason of misconduct and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate. h. On 1 May 1981, the applicant was discharged. His DD Form 214 stated he was discharged UP of AR 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge. He completed 10 months and 20 days of net active service during this period with time lost from 16 October to 15 November 1980 and 7 to 8 January 1981. 5. On 17 April 2014, the Board considered his application for an upgrade but found no evidence of an error or an injustice. The Board denied his petition. 6. On 1 December 2017, the ARBA Clinical Psychologist rendered an advisory opinion in the applicant’s case. The advisor opined there is evidence the applicant engaged in significant misconduct during his time in service and behavioral health conditions are not reasonably related to the misconduct which led to his early separation. This observation does not negate the applicant’s post-service diagnosis of Depression; however, there is insufficient evidence to support the applicant’s contention that he was tortured in training and his record is void of a service connected PTSD diagnosis or another behavioral health condition that mitigated his misconduct and warrants a change to his characterization of service. 7. On 5 December 2017, the applicant was provided with a copy of this advisory opinion to give him an opportunity (30 days) to submit a response and/or a rebuttal. He did not respond. 8. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 9. By regulation, AR 635-200, chapter 14, sets forth the basic authority for the separation of enlisted personnel for misconduct. Soldiers are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities. 10. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service completed prior a pattern of misconduct, some involving violent behavior towards others, as well as the medical advisory’s finding that behavioral health conditions are not reasonably related to the misconduct which led to his early separation, the Board concluded that that the characterization of service, narrative reason for separation and the reentry code 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 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 applicant 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 or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a(1) 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13a(2) states An honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member. c. Paragraph 1-13b states 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. d. Paragraph 14-33b(1) states members are subject to separation under the provisions of this section for the following: Patterns of misconduct. Frequent incidents of discreditable nature with civil or military authorities. 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; 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. 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. ABCMR Record of Proceedings (cont) AR20170016908 8 1