ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20180003599 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Applicant Letter, dated 20 December 2017 * Texas Education Agency Letter, 13 January 2014 * Two Support Letters, dated 27 and 28 November 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d stated an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. Paragraph 1-9e stated a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Paragraph 1-9f stated an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness, misconduct, homosexuality, security reasons, or the good of the service. d. Chapter 10 provided that a Soldier who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial,1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court martial and regardless of the type of court martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court martial convening authority. An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the service. 2. 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. FACTS: 1. The applicant states he was young and immature and didn't realize the error of his ways. Due to his mental status and immaturity, he was not able to make wise choices. His military record reflects honorable conditions up until his mental illness resurfaced. a. Prior to joining the military, he came from a dysfunctional home. His father came home drunk and abused their family on most nights. He was sent to live with his uncle, which presented a safer environment. He ended up moving back to his childhood home in Indiana at the age of 14 after his father died. b. In 1976, he was a reckless, irresponsible, and immature teenager with a wife and young baby. He had stress disorders, but at the same time he was committed to his family. He didn't want to be like his father, so he decided to join the U.S. Army. c. In the beginning, his performance in the Army was satisfactory, but as time progressed, issues like stress disorders, mental anguish, and depression took a toll. He was incapable of making wise choices; his military records reflected his trials and tribulations. Life wasn't easy, but he persisted to make it right. d. He is now 58 years old and has matured. He has learned to take responsibility for his life. 3. He enlisted in the Regular Army on 19 July 1976 at age 17. 4. His Standard Form 88 (Report of Medical Examination) and Standard Form 93 (Report of Medical History), both dated 19 July 1976, do not show any evidence of severe depression or alcoholism. The applicant stated he was in good health. 5. The DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 7 February 1977, shows he received nonjudicial punishment under the provisions of Article 15, UCMJ, for being absent without authority from on or about 0600 hours to on or about 1930 hours on 6 January 1977. His punishment consisted of reduction in rank/grade to private/E-1 (suspended for 60 days), 14 days of extra duty, and forfeiture of $70.00 pay per month for 1 month. He indicated he elected to appeal and submit additional matters. On 7 February 1977, the approving authority granted his appeal and suspended all portions of his punishment for 60 days. 6. The DA Form 2627, dated 10 January 1978, shows he received nonjudicial punishment under the provisions of Article 15, UCMJ, for unlawfully striking a noncommissioned officer on the face with his hand on 20 December 1977. His punishment consisted of reduction in rank/grade to private/E-2 (suspended for 60 days), forfeiture of $75.00, 14 days of extra duty, and 14 days of restriction. He did not appeal and did not submit additional matters in his own behalf. 7. The DA Form 4187 (Personnel Action), dated 12 September 1978, states his duty status changed from present for duty to confined by civil authorities effective 11 September 1978 for being drunk and disorderly. 8. The DA Form 4187, dated 14 September 1978, states his duty status changed from confined by military authorities to present for duty effective 14 September 1978. The remarks state he was absent for 4 days. He was released from jail pending trial. 9. Headquarters, 214th Field Artillery Group, Summary Court-Martial Order Number 16, dated 26 October 1978, shows pursuant to Court-Martial Convening Order Number 6, dated 20 April 1978, the applicant was arraigned and tried at Fort Sill for the following charges and specifications: a. Charge I, violation of Article 86: (1) specification 1: absenting himself from his unit without authority and with intent to avoid field exercises on or about 1300 hours until on or about 1315 hours on 19 August 1978; (2) specification 2: going from his appointed place of duty without authority on or about 2330 hours on 21 August 1978, and (3) specification 3: failing to go at the time prescribed to his appointed place of duty without authority on or about 1630 hours on 21 August 1978; b. Charge II, violation of Article 91: (1) specification 1: being disrespectful in deportment to a noncommissioned officer by acting in a surly and contemptuous manner on or about 19 August 1978, and (2) specification 2: being disrespectful in language to a noncommissioned officer by cursing at him on or about 19 August 1978; c. Charge III, violation of Article 128, specification: assaulting a noncommissioned officer by laying his hands on him on or about 19 August 1978; and d. Charge IV, violation of Article 128, specification: being drunk and disorderly at his duty section on or about on or about 19 August 1978. e. He pled not guilty to charge I and the specifications. He was found not guilty of specifications 1 and 3 and guilty of specification 2. f. He pled guilty to charge II for specification 1 and not guilty for specification 2. He was found guilty of charge II and both specifications. g. He pled not guilty to charge III and the specification. He was found guilty of charge III and the specification. h. He pled guilty to charge IV and the specification. He was found guilty of charge IV and the specification. i. His sentence was adjudged on 19 October 1978. He was sentenced to reduction to the rank/grade of private/E-1, forfeiture of $200.00 pay per month for 1 month, and 10 days of confinement at hard labor. There were no previous convictions considered. j. On 26 October 1978, the convening authority approved the sentence and ordered his sentence executed. 10. The Standard Form 88, dated 2 April 1979, shows the applicant qualified for separation by the physician. 11. The Standard Form 93, dated 2 April 1979, shows the applicant stated his health was good and that he broke his leg on 15 December 1978 while running. The examining physician stated the applicant did not have any health problems. 12. The DD Form 458 (Charge Sheet), dated 4 April 1979, shows he was absent without leave from 28 November 1978 to 26 March 1979. The form does not specify if he was offered punishment under the provisions of Article 15. 13. On 5 April 1979, the applicant consulted with counsel and was advised of his rights. Following consultation with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, for being absent without leave from 28 November 1978 to 26 March 1979. He did not desire further rehabilitation or to perform further military service. He submitted a statement in his own behalf. He acknowledged: * he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions with an under other than honorable conditions discharge certificate * he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs) * he could be deprived of his rights and benefits as a veteran under both Federal and State laws and may encounter substantial prejudice in civilian life 14. In his statement, he indicated he was 20 years old with a ninth grade education. He joined the Army because he needed to get married because he and his girlfriend were expecting a child and he needed a job with benefits. He had to send his wife and son home three times because they were going through financial problems and he could not support them. This almost cost him his marriage; however, he and his wife talked it out while he was absent without leave. They decided they were not going to divorce and he requested an administrative discharge under the provisions of Army Regulation 635-200, chapter 10. 15. The memorandums from the Commanders of the Special Processing Company, and Headquarters, U.S. Army Personnel Control Facility, Lighting Brigade, dated 5 April 1979, subject: Request for Discharge for the Good of the Service, recommended approval of the applicant's separation under the provisions of Army Regulation 635-200, paragraph 10-3, with issuance of a discharge under other than honorable conditions. 16. The memorandum from the Commander, Headquarters, U.S. Army Armor Center and Fort Knox, dated 20 April 1979, subject: Request for Discharge for the Good of the Service, approved the applicant's discharge under the provisions of Army Regulation 635-200 and directed his discharge under other than honorable conditions. 17. On 11 May 1979, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 4 months, and 19 days of net active service during this period with 155 days of lost time. His service was characterized as under other than honorable conditions. His DD Form 214 shows he was awarded or authorized the: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * First Class Gunner (now known as Sharpshooter) Marksmanship Qualification Badge with Grenade Bar 18. On 19 May 1982, the Army Discharge Review Board determined the applicant was properly discharged and denied his request for a discharge upgrade. 19. The letter from the Texas Education Agency, dated 13 January 2014, shows he was issued a Certificate of High School Equivalency on 9 January 2014. 20. On 12 June 2014, the ABCMR denied his request for an upgrade of his discharge to honorable due to medical reasons. The Board determined there was no evidence the applicant had a medical condition that was incurred while entitled to basic pay or was aggravated in the performance of active duty. The evidence presented did not demonstrate the existence of probable error or injustice. 21. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration guidance was applied, documentation is void of a psychiatric condition for consideration. Accordingly, an upgrade is not recommended from a behavioral health standpoint. b. Due to the period of service, active duty electronic medical records are void. Hard copy medical records are not available for this advisory. c. The applicant is not service connected. VA records are void of contact. 22. The letter from W____, Case Management Specialist, The Salvation Army, Houston, TX, dated 27 November 2017, states he was currently working with the applicant to get his discharge upgraded. An upgrade would allow the applicant to seek medical, financial, and housing benefits. 23. The letter from L____, Employment Specialist, Volunteers of America, Houston, TX, dated 28 November 2017, states the applicant has been a client since May 2013 in the Homeless Veterans Reintegration Program at the Career and Recovery Resources and presently at the Volunteers of America. He has demonstrated a willingness to find employment and better his situation in life. He is a giving person who goes out of his way to help others. 24. The Board should consider the applicant’s request in accordance with published Department of Defense Guidance for equity, injustice and clemency determinations. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding the record being void of a psychiatric condition for consideration. Based on a preponderance of evidence, the Board determined that 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 : : : 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003599 8 1