ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20180001107 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * self-authored statement * DD Form 4 (Enlistment Contract – Armed Forces of the United States) * DA Form 20 (Enlisted Qualification Record) * DA Form 2-1 (Personnel Qualification Record – Part II) * DD Form 214 (Report of Separation from Active Duty) * Phoebe Putney Memorial Hospital Patient Health Summary * Florida Certification Board letter * Compass Health Systems visit summary 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 wasn’t notified of any options at the time of his discharge. He put in for a medical discharge because of his mental health conditions. He is requesting upgrade to a general discharge under honorable conditions based on evidence of mental health issues and not understanding the various discharge options. He was only given one option and the type of discharge was not explained to him, only that he was going to be discharged. He did not understand the value of the discharge that was offered to him and the trouble his mental illness would cause as he has aged. a. b. Today he comes before his country, representing himself because he cannot afford legal representation. He just asks for the Board’s consideration of a man who tried to do the best he could with an illness that has plagued him from early childhood and into his adult life. For the first time in his life, he knows that mental illness is a dangerous disease to have and to try to function as a normal man or woman in society has an effect on all concerned. c. Some individuals never get the treatment they need to be able to function at a level that will allow them to become productive members of society and fulfill their obligations, whether in or out of the military. He is asking the Board for leniency when considering the characterization of his discharge. Today he understands the severity of his actions only because of getting the help he needs on a continuous basis. He does what he can to give back to society through education in areas such as mental health, psychology, and addiction that plague our society and those who serve today as well as the veterans who are homeless and panhandle on corners to survive. d. Although he regrets not fulfilling his entire commitment, he will have a chance to help not only veterans but society at large, if his discharge is upgraded. The benefits received by veterans and the benefits he asks to receive will allow him to become a much better person than he is today. He routinely attends his doctors’ appointments, takes his medication, and attends support groups. He is also a student at the University of Phoenix working toward his Bachelor of Arts degree in Health Administration and working toward successful completion of the Florida Certification Boards exam in order to become a certified recovery peer support specialist. He has also attended the Institute for Drug Studies and the American Institute for Professionals and has completed 359 total class hours toward becoming certified by the Florida Certification Board as a certified addictions counselor. e. He asks the Board to please reconsider his case and grant him a discharge upgrade. If he had the chance to fight for his country, he would proudly give his life to keep the world free. 3. The applicant enlisted in the Regular Army on 17 September 1973. 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 June 1974, for absenting himself without authority on or about 28 May 1974 and remaining absent until on or about 1 June 1974. 5. An undated DA Form 3836 (Notice of Return of U.S. Army member from Unauthorized Absence), shows the applicant was reported absent from his unit on 10 March 1975 and surrendered to military authorities on 13 March 1975. 6. U.S. Army Personnel Control Facility, Fort George G. Meade, MD, Special Court- Martial Order Number 24, dated 13 March 1975, shows he was arraigned and tried before a special court-martial where he was charged with and found guilty of absenting 1. himself without authority from his unit from on or about 14 September 1974 through on or about 14 January 1975. 7. On 24 February 1975, he was sentenced to confinement at hard labor for 3 months, forfeiture of $100.00 pay per month for 3 months, and reduction to the rank/grade of private/E-1. On 13 March 1975, the sentence was approved and would be duly executed except for the service of the sentence to confinement at hard labor for 3 months was deferred effective 24 February 1975. 8. A Standard Form 88 (Report of Medical Examination), dated 9 May 1975, shows he underwent a separation physical examination on the date of the form. There are no defects or diagnoses listed and he was deemed qualified for separation. 9. On 19 May 1975, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. 10. He submitted a statement in his own behalf on 30 May 1975, stating: a. His reasons for no longer wanting to stay in the Army are obvious. He feels he can no longer cope with military life. He and his family agree he shouldn’t stay in. Problems away from home, he being the way he is, and the things he likes to do are all not conducive to remaining in the Army. b. He knows he would be better off not in the Army because he is not making enough money to really support a family and he knows he has to because he chose this road, but it’s not taking him where he wants to go. Furthermore, his is not able to get the things out of the military he came in for, such as knowledge of how a real man is supposed to live, because sooner or later he is going to have to adapt to an entirely different way of life. He feels he came into the Army with nothing so he thinks it would be best that he left that way. A discharge under the provisions of Army Regulation 635-200, chapter 10, would be the best for both him and the U.S. Army. 11. On 6 June 1975, his immediate commander recommended approval of the request for discharge for the good of the service in lieu of trial by court-martial and recommended he receive an Undesirable Discharge Certificate. On 17 June 1975, the approval authority approved the request for discharge and directed the issuance of an Undesirable Discharge Certificate. 12. His DD form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court- martial on 26 June 1975, after 1 year, 2 months, and 5 days of net active service with 1. 215 days of lost time. His service was characterized as under other than honorable conditions. 13. There is no evidence of record the applicant was ever diagnosed with or treated for any mental health conditions during his period of service. 14. He provided a Phoebe Putney Memorial Hospital Patient Health summary, dated 14 June 2017, which shows he was diagnosed with: * cocaine abuse * vertigo * dyspnea (labored breathing) * left arm paresthesia (pins and needles sensation) * anxiety and depression * lactic acidosis 15. On 28 February 2018, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The ARBA psychiatrist concluded, based on the available evidence, there is no indication he failed to meet military medical retention standards of Army Regulation 635-40 (Standards of Medical Fitness). There is insufficient evidence to support the applicant’s contention that the misconduct leading to his discharge was due to mental illness. There is no indication in his military records that he suffered from any type of mental condition. Unfortunately, the presence of anxiety and depression in 2017 does not establish the presence of anxiety and depression during the applicant’s period of service in 1973-1975. His post-service diagnosis of anxiety and depression is not a mitigating factor in the misconduct that resulted in his discharge from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 6 March 2018, and given an opportunity to submit comments, but he did not respond. 17. 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. 18. 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 1. 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. 19. 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 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 offenses and a relatively short term of service prior to the AWOL offenses, 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. 5/13/2019 X CHAIRPERSON Signed by: 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. 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 a. 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.