ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20170019157 APPLICANT REQUESTS: an upgrade from under other than honorable conditions discharge due to Post Traumatic Stress Disorder (PTSD). 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) * Medical Records - Castle Family Health Center 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 believes that upon his return from deployment in support of Desert Shield/Desert Storm he suffered from undiagnosed PTSD. He feels that the symptoms of PTSD led to his inability to perform military duties. He stated that prior to the deployment he was promoted every 6 to 8 months with no record of disciplinary actions under the Uniform Code of Military Justice. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 24 February 1989. b. He served one tour in Southwest Asia from 11 August 1990 to 26 March 1991. c. He was reported absent without leave (AWOL) from 11 July 1991 to 3 December 1991. d. Court-martial charges were preferred on 10 December 1991. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL for a period of 145 days from 11 July 1991 to 3 December 1991. a. e. He consulted with legal counsel on 10 December 1991, and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, (Discharge for the Good of the Service). He acknowledged: * if his request was accepted, he may be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge * he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge f. Consistent with the chain of command recommendation, on 28 February 1992, the separation authority approved the applicant’s request with an under other than honorable conditions discharge under the provisions of chapter 10, AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial). g. On 11 March 1992, he was discharged from active duty. His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service, under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial). He completed 2 years, 7 months, and 23 days of active service with 145 days lost days, between 11 July 1991 to 3 December 1991. h. He was authorized or awarded: * Southwest Asia Service Medal with 2 Bronze Service Stars (BSS) * Army Service Medal * Parachutist Badge * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16) 4. In the processing of this case, the Army Review Board Agency medical advisor/psychologist reviewed the applicant’s case and rendered an advisory opinion on 25 January 2018. The psychologist stated: a. The applicant met medical retention standards, in accordance with AR 40-501, Chapter 3 (Medical Services – Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement or Separation) that were applicable to the applicant’s era or service. b. The medical conditions were duly considered during medical separation processing. a. c. A review of available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 5. The applicant was provided with a copy of the advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 6. By regulation, AR 635-40, the mere presence of an impairment does not, of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 7. By regulation, an individual who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Conditions Certificate will normally be furnished to an individual who is discharged for the good of the service. 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 lengthy AWOL offense and the medical advisory finding insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge, 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. 1535874 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a (Honorable Discharge) states that 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 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. 3. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. AR 40-501 (Medical Services - Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 1. (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. 6. 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; TBI; 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 to 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.