ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20180000234 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) ? Applicant's request to his U.S. Senator ? U.S. Senator's letter to the Army Review Boards Agency (ARBA) ? DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, his discharge was unjust because he was on an approved leave; in addition, he requested an attorney, but was his request was refused, and this was a violation of his Constitutional rights. He maintains there is no reason for him to have a felony on his record; the presence of the felony has caused him great harm, destroying him both mentally and physically. Further, the health issues he had (and still has) were never addressed; while on active duty, he asserts he incurred post- traumatic stress disorder (PTSD), and he also suffered from clinical depression and anxiety attacks. The Army just threw him out like "used toilet paper," giving no consideration to his medical issues and his great service record. The applicant provides additional details in a self-authored statement: a. The applicant described his experiences enlisting into the Army; he had wanted to be in the airborne infantry, but was told the only available package was "airborne 'food service specialist.'" The recruiter maintained, however, that, once the applicant got to AIT (advanced individual training), all he would have to do is inform the people there that he wanted to switch, and they would send him to infantry AIT. The applicant 1 contends he did exactly as he was told, but, despite the applicant's repeated efforts, the sergeants and officers in AIT told him such a switch was not possible. b. After completing airborne training, the applicant was assigned to the 82nd Airborne at Fort Bragg, NC; while he was content with the assignment, he remained unhappy that his recruiter had lied. He complained to his mess hall sergeant and his first sergeant (1SG), but they told him there was nothing they could do. c. After several months, his unit prepared for a 6-month deployment to Egypt as MFOs (Multi-National Force and Observers). Initially, the applicant was not slated to go, but a sergeant asked if the applicant would switch with one of the deploying Soldiers. In effect, although the applicant did not immediately agree, the sergeant persisted, and even suggested the applicant write to some of the cooks already in Egypt to see what they thought about their deployment. The applicant wrote the deployed cooks and developed some friendships; he ultimately agreed to the switch. When he later asked the sergeant why he had been so persistent, the sergeant said the wife of the PFC with whom the applicant had switched told the PFC she would divorce him if he went to Egypt for 6 months, and the applicant was this PFC's last hope. The applicant subsequently deployed to Egypt, and, on his arrival in Egypt, the cooks with whom he had been corresponding met with him, and they invited him to a big welcome/farewell party at Naama Bay. d. A sergeant had promised to help get the applicant transferred to the sergeant's unit so the applicant could fly back with his friends at the end of the deployment. However, when the time came to redeploy, messed-up paperwork prevented the applicant's transfer; he was told he would have to wait until it was sorted out. A few days later, the applicant learned the flight he would have been on, and that had been carrying his friends, exploded in Canada, killing all aboard; this happened in December 1985. Over 250 of the applicant's brothers-in-arms died, and many were his friends; because he was a cook, he really got to know people beyond the uniform. To this day, the applicant has felt "ripped apart" by what happened, and the reason for the plane's explosion remains a mystery. The applicant's psychiatrist told the applicant he had "survivor's remorse," and that the applicant had incurred PTSD as a result. The applicant continues to receive treatment for his mental issues, but the military offered no counseling; all the applicant got was a "slap on the back and 'drive on.'" e. While the applicant was deployed in Egypt, he visited Eilat, Israel, where he saw his staff sergeant (SSG) getting attacked by two Palestinians. They were wielding a large military knife and screaming stuff; the applicant was sure they were going to kill the SSG, so he removed the threat. Although he can't say exactly what happened, the end result was both Palestinians were lying on the ground unconscious. The SSG said the applicant had dived over a table, grabbed the Palestinians by their necks, and smashed their heads onto the pavement. The applicant and the SSG decided not to wait around to answer questions, and they took off in a vehicle for Egypt; the applicant assumes the SSG reported the incident because people were talking about it for several days thereafter. The Board should be able to verify the name of the SSG because, a few days after the fight, the SSG killed an Egyptian friend of the applicant's in a vehicle accident. The applicant also noted, while in Egypt, he met a wonderful lady (N ) who would later have a major impact on his life; she was from Portland, OR and was traveling the world with her friend. f. When the applicant redeployed to Fort Bragg, he ran into that same PFC whose deployment slot he had taken; the PFC was now a sergeant/E-5. The applicant thought to himself, while this PFC was promoted two grades, the applicant only got bad memories for his sacrifices. g. Subsequently, the applicant began to realize both his sleep and his behavior were being affected by his deployment experiences; the applicant also noticed he was feeling apathetic about life, but, he points out, he was never disrespectful toward anyone. He asserts he sought the military's help because he wanted to stop reliving the trauma and to put an end to the night terrors the trauma created; however, rather than receiving the treatment he needed, he found himself alone. h. The applicant flew to Portland to see the woman he had met in Egypt; the relationship that developed was the best thing to ever happen to him. As they continued to see each other, he asked her to marry him, and she said yes. One day, while N was driving from Portland to Fort Bragg, a drunk driver hit and killed her. N 's parents refused to tell the applicant the date of the funeral because they blamed him "for her wanting to drive to Fort Bragg instead of flying." i. When the applicant heard a unit needed cooks for a deployment to Panama, he volunteered. All the while, he was still feeling numb inside, and thought to himself the military could do whatever it wanted; he just did not care. The applicant transferred to the deploying unit and waited for the time to go; he avoided talking to people, but he maintained his relationship with K , a Soldier with whom he had gone through boot camp, AIT, and jump school. K invited the applicant to go with him to visit his hometown, but the applicant declined; several days after K had left, the mess sergeant gathered everyone together to say that K__ had died in a car accident. The mess sergeant also asked for volunteers to speak about K at his funeral. The applicant explained his relationship with K and expressed his desire to speak; the mess sergeant told him no. When the applicant asked to go to K 's funeral, inexplicably, the mess sergeant again said no. Despite the applicant asking why, he never got a straight answer; the applicant heard later, from several sources, that the real reason was because the applicant was white. j. The applicant finally deployed to Panama, and he took it upon himself to participate in jungle training. He worked hard to learn everything, and the instructors were great; they were always willing to accommodate the applicant during off-hours. When the unit redeployed, the captain called a formation and handed out ribbons and certificates for those who had completed the jungle training; however, the applicant's name was never called. It seemed to the applicant that, despite all he had done, his efforts were in vain; this brought back memories of the PFC getting promoted to sergeant while the applicant "did his time in Egypt." The applicant told the mess sergeant what had happened at the formation, and the mess sergeant said he would look into it; a few days later, the mess sergeant told the applicant there was no record the applicant had completed the obstacle course or that he had performed the other required training. The applicant felt defeated, so he retreated to his room; he watched no TV but just laid in bed with the lights off. During this period, his night terrors increased and he started having suicidal thoughts; although he sought the clergy's help, he did not get the assistance he needed. k. Around this time, the applicant's mess sergeant said one of the units was looking for cooks to deploy to Egypt; the applicant decided to volunteer again, hoping his bad luck would change. When the applicant reported to his new mess sergeant (SFC S ), the mess sergeant remarked that people who transferred were troublemakers; this comment shocked the applicant because he was no troublemaker. Thereafter, SFC S seemed to go out of his way to give the applicant the worst details, and he made it well known that he did not like the applicant. SFC S__ continued to treat the applicant badly in the months before the deployment; at one point, he denied the applicant the right to jump. The applicant needed a certain number of jumps to remain eligible for deployment to Egypt and, without getting in his three jumps, he would lose his jump status; this would also mean losing the extra $110 he received each month. The applicant asked JAG (Judge Advocate General) to intervene, and their phone call to SFC S__ was effective; after the phone call, it seemed like the applicant was jumping every day. Although he was still having night terrors and suicidal thoughts, he nonetheless felt like the infantryman he had wanted to be at the beginning of his career. l. The applicant's unit finally deployed to Egypt; after their arrival, the applicant heard SFC S and other sergeants discussing an "impossible task" given them by the captain. The captain wanted all the cooks to get their bedding in the morning, but the problem was that no one would then be around to cook the battalion's breakfast; the applicant decided to take the initiative. The night before, the applicant and another Soldier prepped all of the food that would be needed for breakfast; as they were working, the 82nd Airborne Commanding General happened to come by and asked what they were doing. After the applicant explained, the general expressed some concern that the milk being used to make the creamed beef might spoil and cause the Soldiers to get sick; the applicant assured the general that, by refrigerating the creamed beef, its flavor would only be enhanced. Later, when the other cooks arrived for work, the applicant sent them off to get their mattresses and bedding, and he told them what time to return so they could serve breakfast. They all came back at the appointed time and the food was ready. After this, the applicant and the other Soldier got their bedding and went to sleep. m. Later in the evening, SFC S said he wanted to talk with the applicant; the applicant was worried that something had gone wrong or that the general had made a complaint. Instead, SFC S thanked the applicant for what he had done and said the general had declared the creamed beef was the best he had ever tasted. After that, the applicant had no more problems, and the remainder of the deployment went without incident; he was not, however, able to shake his past hardships, in that his night terrors continued. On the unit's redeployment, the applicant again sought help, but no one was willing to assist; he felt he was losing his mind, and no one in the 82nd cared. n. Because people were resigning their jump status, the 1SG called a special formation; the 1SG insulted the Soldiers who were giving up their jump status, and he asked if anyone else wanted to do the same thing. When the applicant raised his hand, the 1SG looked surprised and called the applicant crazy; he said he would send the applicant for a mental evaluation. The applicant was glad at the thought he would finally get the help he was seeking, but when he arrived at the mental place and explained what he had been experiencing, the person just told the applicant he was not there to listen to the applicant's problems; he only wanted to know if the applicant had raised his hand to embarrass the 1SG. When the applicant replied that he had not, the person dismissed him. The applicant was then sent to see the captain, and, after lecturing the applicant, the captain asked if the applicant had anything to say; when the applicant asked if he could speak his mind, the captain refused. The applicant posited that, his entire life, he had dreamt of being airborne, and, simply by raising his hand, his status as an airborne Soldier was struck from his life; all of this happened because he could not get the help he so strongly needed. o. The Army transferred the applicant to the John F. Kennedy Special Warfare Center (JFKSWC); the daughter of a family friend started writing the applicant and they began to meet. After several months, the woman accepted the applicant's marriage proposal; the applicant put in for leave, and the couple married. After the marriage, the applicant's wife returned home to New York; shortly thereafter, when the applicant called her, she told him she had moved in with a boyfriend, and she wanted a divorce. The applicant told his sergeant what had happened, and, because the applicant was still on leave, the sergeant just said the applicant should try and fix the problem. Because the applicant was still new at the unit, the sergeants really did not know the applicant's work ethic, nor did they fully appreciate the kind of Soldier he was. p. Using his authorized leave, the applicant flew to New York and confronted his bride; she told the applicant she thought, if they did not get married, the applicant would get into trouble. After this, and while still in New York, the applicant learned his father had received a letter from the applicant's unit stating the applicant was absent without leave (AWOL); the letter further directed the applicant to go to Kentucky to turn himself in. The applicant hitchhiked across Canada to his parent's home in Michigan, and, when he read the letter, he just could not believe what it said. Because he had no way of getting to Kentucky from his parent's home, the applicant turned himself in at a local Michigan police station; the police, in turn, transferred him to the county jail, where he waited almost a week. After this, he was moved to Chicago, and they put him into a Federal prison; at this prison, his new shoes were stolen and he got into a fight with an inmate. As a result, the guards placed the applicant in confinement; a bus eventually came to transport him to Kentucky. q. On his arrival in Kentucky, everyone started addressing him as private, even though he was still a specialist four (SP4), and there had been no trial to warrant such a demotion. When they asked who still wanted to stay in the Army, the applicant raised his hand; they sent him to see two people: the 1SG, who just made a phone call and told him to report back to the barracks, and a second lieutenant, who got upset because he thought the applicant had not reported to him properly. The applicant went back to the barracks where he waited and waited to show someone his leave papers; however, no one ever cared to take a look. Later, someone came to the barracks and asked if anyone wanted to see an attorney; the applicant said he did, so they sent him to a building. The applicant sat on a wooden bench for an hour until someone finally came out and said, "If you are here to see an attorney about being AWOL, you need to report back to your barracks." When the applicant returned to his barracks, a sergeant had him write something on a piece of paper, after which the sergeant told the applicant he would have to find his own way home. r. The applicant states, "The abuse, trauma, the complete ignoring of my legal rights and evidence will always remain with me. I tried to fight this for over 10 years and I finally said you win Army, and threw everything, including my uniform and beret, into a dumpster. I gave 100 percent to the military and, in return, I have to see a psychiatrist not only for the tragedies I couldn't get help to handle, but also how the Army and the 82nd leadership discarded me." The applicant notes, while he will accept any upgrade, he feels he deserves an honorable character of service, based on the poor treatment he received. He is now totally disabled and receives $730 per month from the Social Security Administration; however, it is impossible to live on this amount. All of his mental problems, to include PTSD and his clinical depression, stem from his active duty service. He asks the Board to consider that all the events he described took place when he was between 18 and 20 years of age, and he emphasizes he tried his hardest to get help. 3. The applicant's service records show: a. The applicant enlisted in the Regular Army on 2 May 1984 for a term of 3 years and 4 days; he was 18 years old. Following initial and airborne training, orders assigned him to Fort Bragg, and he arrived on 3 October 1984. b. The applicant deployed to the Sinai from 21 January until 17 July 1985 (the applicant's service record does not show any other deployments). Effective 1 November 1986, the applicant's chain of command promoted him to SP4/E-4. Effective 17 March 1987, permanent orders (PO) removed the applicant's parachutist special qualification identifier (SQI). On 20 March 1987, the applicant was transferred to JFKSWC, 1st Special Warfare Training Battalion (Airborne). On 29 May 1987, PO awarded the applicant the Army Good Conduct Medal (1st Award) for the period 2 May 1984 through 1 May 1987. c. On 21 Jun 1987, the applicant's unit reported him as AWOL, and dropped him from unit rolls on 21 July 1987. On 5 January 1988, the applicant surrendered to local police in Michigan, and, effective that same date, the applicant was reassigned to the U.S. Army Personnel Control Facility (PCF) at Fort Knox. d. On 27 January 1988, the applicant's PCF commander preferred court-martial charges against him for being AWOL from 21 June 1987 until 5 January 1988 (198 days). Also on 27 January 1988, the applicant signed a memorandum in which he declared he had been advised by his defense counsel (a Judge Advocate General (JAG) officer) that, while the government did not have the necessary documentation and/or records to obtain a court-martial conviction, the applicant nonetheless "knowingly, willingly, and voluntarily" affirmed he had been AWOL from 21 June 1987 to 5 January 1988. Then, after consulting with that same JAG counsel, the applicant confirmed, in a memorandum, that he was voluntarily requesting discharge in-lieu of trial by court-martial, under chapter 10 (Discharge In Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he verified no one had subjected him to coercion and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he elected not to submit a statement in his own behalf. e. On 4 February 1988, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; he also ordered the applicant's rank reduction to the lowest enlisted grade. On 18 March 1988, the applicant was discharged accordingly; his DD Form 214 shows he completed 3 years, 4 months, and 3 days of his 3-year enlistment, with lost time from 19870621 through 19880104. He was awarded or authorized the Army Service Ribbon, Multinational Force and Observers Medal (1st Award), Parachutist Badge, Army Good Conduct Medal (1st Award), and a marksmanship qualification badge. 4. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. The Manual for Courts- Martial then in effect stated a punitive discharge was one of the authorized punishments for violations of Article 86 (Absence Without Leave for more than 30 Days). 5. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. Based on the applicant's claims of PTSD, clinical depression, and anxiety attacks, the Army Review Board Agency medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section." MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents. Department of Veterans Affairs' records were unavailable. The applicant is not service connected. The applicant did not provide medical documentation to support his asserted psychiatric condition. The records are void of a psychiatric diagnosis and the applicant did not submit records of such a diagnosis. Accordingly, an upgrade is not recommended. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient documentation of any behavioral health conditions that would support a conclusion that his misconduct is mitigated by PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishment for violation of Article 86 (AWOL for 30 or more days) included a punitive discharge. 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 (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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 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 misconduct that led to the discharge. 7. 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 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. //NOTHING FOLLOWS//