ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20180001240 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 95 pages of service medical records * 29 pages of service records * DD Form 214 * Department of Veterans Affairs (VA) Compensation and Pension (C&P) Mental Disorders – Disability Benefits Questionnaire, dated 6 May 2017 * VA Rating Decision, dated 15 June 2017 * VA letter, dated 19 June 2017 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 discharge should be upgraded due to his mental health. 3. The applicant enlisted in the Regular Army on 3 September 1992. 4. Among his medical records, he submitted a Standard Form 600 (Chronological Record of Medical Care) containing a note, dated 29 March 1994, which states the applicant claimed increasing memory loss, involuntary muscle twitching and overall uneasiness for 3 weeks. The applicant stated he had family problems going on 8 months and his wife walked out on 1 January 1994. He felt his father was out to get him, he felt depressed, withdrawn, and had thoughts of suicidal tendencies in early January 1994. 5. The applicant provided a Standard Form 513 (Consultation Sheet), dated 17 April 1994, which states the applicant was in the hospital for surgery on his spleen when he underwent an emergency bedside consultation. He stated he was going through a divorce and job stress and wanted to talk to someone. He had a history of carving crosses on his arm to relieve stress and denied suicidal/homicidal ideation at the present. He received a provisional diagnosis of suicidal ideation and adjustment disorder with depressed mood. 6. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) shows the applicant went absent without leave (AWOL) on 4 October 1994 and was declared a deserter on 3 November 1994. 7. On 4 January 1995, he was charged with being AWOL from his unit without authority from on or about 4 October 1994 through an unspecified date. 8. In an undated Special Processing Company, Personnel Control Facility memorandum signed by the applicant, he admitted to being AWOL from on or about 4 October 1994 through 26 December 1994. 9. On 30 December 1994, he 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. 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 submitted a statement in his own behalf. 10. In his 30 December 1994 statement, he wrote: a. His military life changed a lot since his separation from his wife. He became an alcoholic and mentally unstable and saw counselors for both conditions. b. He also stated he had a hearing problem in his right ear, but the audiologist determined he was lying about his hearing trouble, so the audiologist pushed for nonujudicial punishment under Article 15 of the Uniform Code of Military Justice. The applicant knew what he couldn’t hear and tried to fight it, but it was no use. He had eight hearing tests in his medical records that did not match up. He declined his physical examination because he knew he had the hearing problem when he joined the Army. c. He also had financial problems due to his separation from his spouse and his chain of command did not want to help him, so he went AWOL, which solved a lot of his problems. He held three different jobs while AWOL and had a better life outside of the Army. 11. On 30 December 1994, his immediate commander, recommended approval of his request for discharge in lieu of trial by court-martial, stating based on his previous record, punishment could be expected to have minimal rehabilitative effect and discharge was in the best interest of all concerned. She stated there did not appear to be any reasonable ground to believe the applicant was mentally defective, deranged, or abnormal at the time of his misconduct. She recommended a UOTHC discharge. 12. On 13 February 1995, the approval authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction in rank/grade to private/E-1 and the issuance of a UOTHC Discharge Certificate. 13. His DD Form 214 shows he was discharged on 10 March 1995 in lieu of trail by court-martial and his service was characterized as UOTHC. He completed 2 years, 3 months, and 16 days of active service during this period, with lost time from 4 October 1994 through 25 December 1994. 14. A VA Rating Decision, dated 15 June 2017, shows he was granted a service- connected disability rating of 100 percent for adjustment disorder with mixed anxiety and depressed mood effective 11 October 2016. 15. On 26 June 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. He stated 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. The ARBA medical advisor concluded there is no evidence the applicant had a behavioral health condition that would mitigate the basis for his separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. On 27 June 2018, the applicant was provided a copy of the advisory opinion 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 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his service record, the nature of his misconduct, his personal statement and the conclusions of the advising official. The Board determined that there was insufficient evidence of mitigating factors for his misconduct and that his current character of service was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. 4. 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. ABCMR Record of Proceedings (cont) AR20180001240 2 1