ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20180000934 APPLICANT REQUESTS; * upgrade of his under honorable conditions (general) discharge * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his service in Grenada and authorized awards APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Review Board’s acknowledgement of receipt letter * Self-Authored Statements * Congressional letter acknowledging applicant’s claim * Certificate of Participation in Housing Unit Veteran Rep * Mental Evaluation * 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 his under honorable conditions (general) discharge should be upgraded so that he can seek medical treatment from the Department of Veteran’s Affairs (VA). He states that he currently has mental issues, incarcerated during this time and is homeless. He states that he served in Grenada in 1983 and his time spent there is not annotated on his DD Form 214 and he would like it corrected so that he can get the help that he needs. 3. A review of the applicant’s service show: a. He enlisted in the Regular Army (RA) on 20 March 1983. b. He was assigned as a military occupational specialty (MOS) 12B (combat engineer) to the 82nd Airborne Division, C Company, 307th Engineer Battalion, Fort Bragg, NC on 12 August 1983. c. His DA Form 2-1, item number 27 (Miscellaneous) shows that he was assigned to a danger pay area in Grenada, but does not specify the dates. d. He received nonjudicial punishment (NJP) under Article 15 on/for: (1) 24 December 1983, for willfully disobeying a lawful order from a non-commissioned officer (NCO) on or about 15 November 1983 to return to work at Grand Anse Campus, Grenada, and on 11 December 1983 communicating a threat to injure a Soldier at Fort Bragg. His punishment consisted of reduction to E-1. (2) 30 January 1984, for failing to go to his appointed place of duty on or about 18 January 1984 at Fort Bragg, NC. (3) 6 March 1984, for failing to go to his appointed place of duty on or about 27 January 1984 at Fort Bragg, NC. e. On 31 January 1984, a bar to reenlistment was approved for receiving NJP. His commander stated that "he has also been involved in lying and possibly stealing." f. On 14 March 1984, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for unsuitability (poor military conduct, receiving an Article 15, and his disregard to authority). g. On 14 March 1984, he acknowledged receipt of notification of the separation action. He consulted with counsel who advised him of the basis for the contemplated action to accomplish his separation for unsatisfactory performance under the provisions of chapter 13 of AR 635-200 and its effect; of the rights available to him; and the effect of any action taken by him in waiving those rights. He further acknowledged: * he may encounter substantial prejudice in civilian life if a general discharge, under other than honorable conditions is issued to him * he may apply to the Army Discharge Review Board for an upgrade h. On 14 March 1984, his immediate commander initiated action to separate him under the provisions of chapter 13, AR 635-200 for poor military conduct and flagrant disregard for authority. i. The separation authority approved the applicant’s discharge with a general, under honorable conditions characterization of service. He would be transferred to the Individual Ready Reserve. I don't see the separation authority's memo j. On 22 June 1984, he was discharged from active duty, with a general, under honorable conditions characterization of service. His DD Form 214 shows he was discharged under the provisions of chapter 13 of AR 635-200 for unsatisfactory performance. He completed 2 years, 8 months, and 6 days of active service. His DD Form 214 shows in: * item 12f (Foreign Service), zero foreign service * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Service Ribbon, Parachutist Badge, and Armed Forces Expeditionary Medal * Item 18 (Remarks) no entry regarding deployment to Grenada 4. On 26 June 2018, the Army Review Boards Agency senior medical advisor rendered an advisory opinion in the processing of this case. The medical advisor stated the following: a. Limited review of VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) showed the applicant lacks a VA SC disability rating. * his VA Problem List has 3 diagnoses: Lack of Housing, Alcohol Dependence, and Tobacco Use Disorder * he had no VA admissions for any kind of treatment * he has had 10 VA Outpatient Encounters * these encounters cite homelessness, legal circumstances, or alcohol/drug difficulties as reasons for the encounter * on February 27 2018, the applicant was seen in prison, ''to address social maladjustment issues" * at that time, he was not yet eligible for release from prison; however, he did file an application for health benefits b. The applicant made a number of requests. He made reference to mental health problems and submitted limited information that gave information about his medications, but was limited regarding his psychiatric history, but did reference mood instability, "bipolar'' anxiety, and depression. There was no available medical evidence from the time of his service. At the time of his discharge, he wrote a statement that complained of at least a portion of his difficulties being rooted in a racist NCO. c. The senior medical advisor answered the following questions: (1) Does the available record reasonably support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) existed at the time of the applicant's military service? No. (2) Did this condition(s) fail medical retention standards IAW (in accordance with) Army Regulation (AR) 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? Not Applicable. (3) Did this condition(s) fail medical retention standards IAW (in accordance with) AR 40-501 warranting a separation through medical channels? Not Applicable (4) Were BH (behavioral health) conditions present at time of misconduct? No. (5) Were BH conditions mitigating for the misconduct or Unsatisfactory Performance? No (6) IAW Title 10 Section 1177 (signed into law on 28 October 2009), was a BH evaluation conducted prior to the administrative separation of the Applicant? Not Applicable. (7) The applicant met medical retention standards IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. (8) The applicant's medical conditions were duly considered during medical separation processing. (9) 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. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 5. The applicant was provided a copy of the advisory opinion and given the opportunity to provide a rebuttal, however, he did not respond. 6. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsuitability/unsatisfactory performance. An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 7. 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. 8. By regulation (AR 635-5), when completing the DD Form 214, for: * item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214 * item 13, list all awards and decorations * item 18, for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" 9. By regulation (AR 600-8-22), the Armed Forces Expeditionary Medal is awarded for Grenada-Operation Urgent Fury for soldiers who served between 23 October and 21 November 1983. The qualifying criteria for non-unit direct support personnel in Grenada is 6 consecutive days or 12 non-consecutive days. 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 short term of honorable service completed prior to a pattern of misconduct, which included threats of violence towards others Soldiers, the Board concluded that the characterization of service received at the time of separation was appropriate. The Board did find that the applicant had service in Grenada which was not currently reflected on his DD Form 214. However, the Board found that relief was not possible at this time in this area because there was insufficient evidence of the specific dates of service in Grenada on any authoritative document either provided by the applicant or found within the service record. For that reason, the Board recommended denying the applicant’s request. 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides 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 it is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 13-2 says that commanders will separate a member for unsatisfactory performance when it is clearly established that: * in the commander’s judgement, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and moral * it is likely that the member will be a disruptive influence in the present or future duty assignments * it is likely that the circumstances forming the basis for initiation of separations proceedings will continue or recur * the ability of the member to perform duties effectively in the future, including potential for advancement or leadership is unlikely 2. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service. It establishes standardized policy for the preparation of the DD Form 214. It states for: * item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214 * item 13, list all awards and decorations * item 18, for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)" 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 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) AR20180000934 4 1