ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 August 2020 DOCKET NUMBER: AR20180002345 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552) .DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States) .Self-Authored Statement, dated 6 January 2017 .Extract, Psychological Evaluation, Licensed Clinical Psychologist, dated20 September 1984 .Treatment Record, dated 17 April 2017 REFERENCES: 1.Title 10, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the Army Board for Correction of MilitaryRecords (ABCMR) to excuse an applicant's failure to timely file within the 3-year statuteof limitations if the ABCMR determines it would be in the interest of justice to do so. 2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence. 3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect atthe time, set policies, standards, and procedures to ensure the readiness andcompetency of the force while providing for the orderly administrative separation ofSoldiers for a variety of reasons. Chapter 10 provided that a member who committed anoffense or offenses for which the authorized punishment includes a punitive dischargemay submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. 4.Army Regulation 600-200 (Enlisted Personnel Management System), in effect at thetime, prescribed policies and procedures for promotions and reductions in rank.Paragraph 6-11 stated that when the separation authority determined that a Soldierwould be discharged from the service under other than honorable conditions, he or shewould be reduced to the lowest enlisted grade. 5.On 3 September 2014, the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD)criteria, detailed medical considerations, and mitigating factors when taking action onapplications from former service members administratively discharged under other thanhonorable conditions and who have been diagnosed with PTSD by a competent mentalhealth professional representing a civilian healthcare provider in order to determine if itwould be appropriate to upgrade the characterization of the applicants' service. 6.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberalconsideration to veterans petitioning for discharge relief when the application for relief isbased, in whole or in part, on those conditions or experiences. The guidance furtherdescribes evidence sources and criteria and requires boards to consider the conditionsor experiences presented in evidence as potential mitigation for misconduct that led tothe discharge. 7.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Service BCM/NRs regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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, whichmay be warranted on equity or relief from injustice grounds. This guidance does notmandate relief, but rather provides standards and principles to guide BCM/NRs inapplication of their equitable relief authority. In determining whether to grant relief onthe basis of equity, injustice, or clemency grounds, BCM/NRs shall consider theprospect 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. FACTS: 1.The applicant did not file within the 3-year time frame as provided in Title 10,U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file. 2.The applicant states he was severely depressed and had physical injuries whichimpaired his thinking at the time of his discharge. He didn't understand what happenedto him and was unable to make appropriate decisions. He was told to sign separationpapers without explanation or assistance. He was a good Soldier. a.During the 1988 military training exercise, Return of Forces to Germany, he wasinjured when a Bradley Fighting Vehicle overturned, resulting in neck and head injuries. He was encouraged to not report to medical personnel during this major training event. Over time, the effects of his injuries worsened and he was reassigned to a position working in an armory, which caused severe claustrophobia. He also became severely depressed because he was separated from his former platoon and experienced a lack of outdoor physical activity. His command strongly suggested that he go home for the Christmas holiday in order to rejuvenate himself. b.While he was on leave in December 1988, he was injured while attempting to de-escalate a domestic violence incident between two other people. During the incident, the tendons in his left hand were severed by a large butcher knife. He was taken to a local hospital where his struggle with anxiety and depression became even worse. As a result, he did not return to Germany after his period of authorized leave. c.In September 1989, he called his commander and was told to surrender tomilitary authorities at the Fort Ord, CA. After reporting and spending several months at the U.S. Army Personnel Control Facility, he was extremely depressed and suffering from major traumatic effects from the training accident and his severe hand injury. All of his prior mental difficulties resulted in mental confusion. He didn't understand anything that was happening and was very confused. He was told to sign separation papers, and he complied with those instructions. He did not realize he would be discharged with an "other than" honorable status. d.He believes his service was completely honorable and he did his best at all timesin every situation. He was a good Soldier, was liked by everyone, and was complimented for his performance. He had no disciplinary marks on his service record. e.As a teen, he was diagnosed with several psychiatric disorders, including PTSDand anxiety. Although he was a good Soldier and always performed his assignments to the best of his ability, several events significantly worsened his problems and he has been suffering with mental and physical problems for a long time. Since his separation, he has struggled with the neck and head injury he sustained in the armored vehicle accident; major depressive episodes; severe anxiety; and sleep problems, such as insomnia and night terrors. f.It has taken him many years to find the courage to request an upgrade of hisdischarge and entitlement to Department of Veterans Affairs benefits, but he realizes he needs the help to take care of himself and his daughter. 3.A psychological evaluation of the applicant, dated 24 September 1984, wascompleted when he was 15 years old. The licensed clinical psychologist highlyrecommended his involvement in psychotherapy on a continuing basis and stated: .there were no indications of academic difficulties, except that he gets poorgrades when under emotional stress .he shows bright to superior intelligence .he is displaying long-term psychological difficulties that resulted from years offeeling abandoned and rejected by his parents .much violence has been used against him in his upbringing, which has increasedhis feelings of inadequacy and insecurity .he tends to be depressed and is also impulsive, which means he acts withoutconsidering the consequences of his actions .he shows a mild to moderate potential for suicidal-type behavior 4.On 26 January 1988, he enlisted in the Regular Army in the rank/grade ofprivate/E-1. 5.After completing training, he was assigned to a unit in Germany. He was advancedto the rank/grade of private first class/E-3. 6.His records show he was absent without leave (AWOL) during the period of from29 December 1988 through 20 September 1989 and was pending court-martialcharges. 7.On 21 September 1989, he surrendered to military authorities at Fort Ord, CA. Hewas assigned to the Processing Company, U.S. Army Personnel Control Facility,Fort Ord, CA, effective that date. 8.On 28 September 1989, court-martial charges were preferred against him forviolating Article 86 (Absence without Leave) of the Uniform Code of Military Justice forbeing AWOL from 29 December 1989 through 21 September 1989. 9.On 28 September 1989, he consulted with defense counsel and voluntarilyrequested discharge for the good of the service in lieu of trial by court-martial under theprovisions of Army Regulation 635-200, chapter 10. He stated he did not desire furtherrehabilitation and had no desire to perform further military service. He acknowledgedhe understood: .charges were preferred against him for being AWOL .he might be discharged under conditions which were other than honorable, whichwould deprive him of many or all Army benefits as a veteran .if his discharge is approved, he will be administratively reduced to the grade/rankof private/E-1 and will forfeit all accrued leave .he might expect to encounter substantial prejudice civilian life as a result .while he may apply to either the Army Discharge Review Board or the ABCMRfor upgrading, that did not imply his discharge would be upgraded 10.On 16 January 1990 consistent with the chain of command's recommendations, theseparation authority approved his request for discharge for the good of the service inlieu of trial by court-martial and directed his reduction to the lowest enlisted grade anddischarge under other than honorable conditions. 11.His military medical treatment records, to include the report of medical history andmedical examination upon entry into military service, are not available for review. 12.On 2 September 1990, he was discharged under other than honorable conditionsunder the provisions of Army Regulation 635-200, chapter 10. His DD Form 214(Certificate of Release or Discharge from Active Duty) shows: .he completed 1 year, 3 months, and 16 days of net active service during thisperiod .he completed 6 months and 24 days of foreign service .his narrative reason for separation as for the good service in lieu of trial bycourt-martial .he accrued lost time from 29 December 1988 through 20 September 1989 13.His Cumberland River Comprehensive Care treatment record, dated 17 April 2000,shows his diagnoses as: .Axis I, code 300.3 – obsessive-compulsive disorder .Axis I, code 296.32 – major depressive disorder, recurrent, moderate .Axis III, V71.09 – none 14.On 6 March 2020, the applicant's Constituent Services Representative requestedan update on his case. The inquiry included a letter from the applicant's wife, whereinshe stated: a.She is writing on behalf of her husband and his application to have his dischargeupgraded to honorable. They contend that his military service severely exacerbated his pre-existing mental illness and caused undue hardship in his life. b.From birth through early adolescence, he was raised by his mother who sufferedfrom significant mental illness. From a very early age, she inflicted extreme physical and emotional violence upon him. As a toddler, she filled him with drugs and alcohol and repeatedly poisoned his food. She loaned him out to her friends at parties for their entertainment. His grandparents intervened and he was placed in their care. However, when they became too elderly to care for him, he was sent to live with his father, a violent alcoholic. He was subsequently removed and placed in the foster system The trauma inflicted on him up to this point resulted in a series of suicide attempts and an extended stay at a lockdown mental hospital, after which he was returned to the foster care system. He was diagnosed with bipolar disorder, major depressive disorder, and severe anxiety/panic disorder. He was sexually abused repeatedly by his appointed foster mother. He ran away from the home several times and lived on the streets for years as a teenager. He did not finish high school. Eventually, his father found him and helped to facilitate his enlistment through the Delayed Entry Program. c.He was stationed in Germany during the Cold War and his psychologicalproblems began to resurface during Return of Forces to Germany training exercise. Several incidents occurred that exacerbated his psychological problems. His Bradley Fighting Vehicle overturned in a river, trapping him and others inside. Simulated incoming fire was a daily source of chaos and panic in his mind. When his armored vehicle came under simulated fire and he received a serious head injury, he was not given medical treatment because it would have taken time away from the training exercise. d.After witnessing the death of a close friend, he approached his supervisor forhelp and was told he should take a leave of absence "to get his head right." He was driven to the airport and placed on an airplane to Fort Ord, CA, and was told he would be working there while the military decided what to do with him. Eventually he was told that he would be discharged, but he did not understand why or what was happening to him. He was very afraid and confused, and was unable to get anyone to help him understand. He suddenly found himself homeless again, continuing a pattern of instability due to a lack of support and the assistance he desperately needed. He lived on the streets and eventually found his way back to Kentucky in 1995, surviving the best he could. e.In 2003, he became a father. He has worked odd jobs to support his daughter,but he has been unable to retain employment for any length of time due to his mental illness and seizures. For the past 20 years, he has been under the care of a psychiatrist. His treatment consists of an annual check-up to renew his bipolar disorder medication – there is no substantive counseling. They live in an area that is significantly lacking in medical and mental health care. As a result, he has spent much of his life hidden away in an upstairs room of the house. He does not go outside other than to walk up and down the street when his anxiety is high. He suffers from extreme agoraphobia, panic disorder, major depressive episodes, bipolar disorder, chronic obstructive pulmonary disease, and seizures. His psychiatrist stated he shows several main traits of autism, but there is no psychological testing in the county where they live. In 2019, he attempted to be tested in another county, but he was unable to sit alone in a small room and answer a 300-question examination. He panicked and ran from the building and the testing could not be completed. f.In 2017, he requested and received a legible copy of his DD Form 214, and forthe first time, he realized he was never given an opportunity to sign the form when he was discharged. Further, he was shocked to see "AWOL" on some the additional paperwork he received. The incidents that occurred to him are not documented. Therefore, previous responses to his attempts to ask for help have essentially accused him of lying, which was a devastating blow. g.Her husband is a good man. He has no criminal background. He is quiet, well-mannered, and polite. He is also very lost and broken. He should never have been allowed to enlist because he was not emotionally or intellectually able to make such an important decision. He was a teenager with untreated bipolar disorder who had been lost in the foster system, allowed to fall again and again. In the Army, he served honorably, but the series of events that occurred unearthed the deep-seated psychological problems from his past. The Army did not provide the care he asked for and desperately needed. h.The closest Department of Veterans Affairs Medical Center is too far away forhim to travel from his home, as his psychoses will not let him travel. Upgrading his discharge to honorable will assist him in obtaining the benefits and care that he and his daughter truly need. 14.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military records. The Armed Forces Health LongitudinalTechnology Application (AHLTA) & Health Artifacts Image Management Solutions(HAIMS) was not in use at the time of his service. His hardcopy medical records werenot available for review. A copy of 2 pages of a 9 page psychological report dated 20Sept 1984 indicates he was evaluated at age 16 at the request of the Health andWelfare, Child Protection Agency. The diagnosis page was not provided but thepsychologist’s conclusions indicate the applicant had “bright to superior intelligence”,tendency “to be depressed”, “impulsive which means that he acts without consideringthe consequences of his actions”, and “potential for suicidal type behavior.” A review ofhis service record indicates he has a GT Score of 110. A soldier’s GT score is highlycorrelated with IQ with his score placing him in the high average range. After traininghe reported to his first unit on 7 Jun 1988. The next notation in his service regard is 29Dec 1988 when his status changed from ordinary leave to absent without leave (AWOL)until returning to military control on 21 Sept 1989. A civilian provider note from 17 Apr2000 shows diagnoses of Obsessive Compulsive Disorder (OCD) and Major DepressiveDisorder (MDD). A letter from the applicant’s spouse, dated 13 Jan 2020, states theapplicant has been diagnosed with Bipolar Disorder, MDD, Panic Disorder, seizures,and severe anxiety. A review of VA’s Joint Legacy Viewer (JLV) indicates he has notbeen evaluated or treated in the VA system. He does not have a service connecteddisability rating. In accordance with the 3 Sep 2014 Secretary of Defense LiberalGuidance Memorandum and the 25 Aug 2017, Clarifying Guidance there isdocumentation to support a behavioral health condition at the time of his discharge.Documentation pre and post military service support the MDD and OCD diagnoses.While it is acknowledged the applicant is currently being treated for additionaldiagnoses, his 2000 evaluation does not include the additional diagnoses that likelydeveloped over time since 2000. There is no documentation to indicate he did not meetretention standards at the time of his discharge. Given his IQ and documentation of hisconsultation with counsel, there is nothing to indicate he could not understand theproceedings and administrative process resulting in his request for Chapter 10separation. Neither MDD nor OCD are considered mitigating factors for the misconductthat led to his discharge. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. 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 letter of support and found insufficient evidence of error, injustice, or inequity. The Board agreed with the Medical Advisory Opinion that the available record contains nothing to indicate he could not understand the proceedings and administrative process resulting in his request for Chapter 10 separation. The Board also agreed that neither MDD nor OCD are considered mitigating factors for the misconduct that led to his discharge. The Board further found limited evidence of post-service honorable conduct or other possible grounds for clemency that might have mitigated the discharge characterization. Therefore, 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 : : : 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. X 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. //NOTHING FOLLOWS//