ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170019608 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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: a. He believes he was suffering from post-traumatic stress disorder (PTSD) at the time of his discharge, which caused his actions. During the court-martial hearing he was advised he would still be able to use his medical benefits, but he has been denied the use of medical benefits. b. He is unable to provide medical documentation because after attempting to be seen at the Department of Veterans Affairs (VA) hospital, he was informed he was ineligible for medical benefits and refused treatment due to the character of his service. c. He has been seen by other physicians due to his complaints of not sleeping, joint pain, headaches, waking up in a panic, and being unable to be around large crowds of people. He believes those issues along with many others may have something to do with the time he served during Desert Storm. d. His UOTHC discharge is an improper life-long sentence for a young man who was great at the duties he was assigned and who was able to move up through the ranks very quickly. If the Board could talk to his sergeants (SGT), SGT X____, SGT X____, or SGT X__ from the 82nd Airborne Division, they would vouch for his character. He had unexplained responses and made poor decisions after what he had been exposed to during deployment. Because of this, he now does not qualify for insurance through USAA or VA benefits, including the option of receiving a VA loan or health coverage. 3. The applicant enlisted in the Regular Army on 10 Mary 1989 and was awarded military occupational specialty 45N (M60A1/A3 Tank Turret Mechanic). 4. He deployed to Southwest Asia from 10 August 1990 through 31 March 1991 and the highest rank/grade he attained was sergeant/E-5. 5. On 31 March 1993, he was charged with absenting himself from his unit without authority (AWOL) from on or about 14 July 1991 through on or about 18 March 1993. 6. On 31 March 1993, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, as a result of the above preferred charge of being AWOL. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did submit a statement in his own behalf. 7. In his statement, the applicant requested the issuance of a general, under honorable conditions discharge. He stated he left for Desert Storm on 5 August 1990 with his unit, 3rd Battalion, 73rd Armor Regiment, 82nd Airborne Division. During the 8 months he spent deployed, he maintained the tanks to the best of his abilities. They were assigned with the French during their ground attack into Iraq. To the best of his knowledge, none of their tanks had any turret trouble and he believes he completed his duties to the Army and his country. 8. On 29 June 1993, the approval authority approved the request for discharge and directed the applicant’s discharge UOTHC with reduction to the rank/grade of private/E-1. 9. On 23 July 1993, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of court-martial after 2 years, 6 months, and 10 days of net active service this period, with lost time from 14 July 1991 through 17 March 1993. His service was characterized as UOTHC. 10. There is no evidence of record the applicant was ever diagnosed with or treated for PTSD or any other behavioral health condition either during or after his period of service. 11. On 19 April 2018, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion which states: a. A limited review of VA records through the Joint Legacy Viewer (JLV) revealed the applicant had no current registration at a VA facility and no medical records in the JLV. b. The available records do not support PTSD or any other boardable behavioral health conditions existed at the time of the applicant’s military service. A review of the 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. c. Base on the information available for review, the applicant did not have mitigating medical or behavioral health conditions for the offense 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 24 April 2018 and given an opportunity to submit comments, but he did not respond. 13. 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, or sexual harassment. Boards are 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. 14. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed with the medical advisory that there is insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case as the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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, or sexual harassment. Boards are 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 misconduct that led to the discharge. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019608 5 1