ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  24 September 2020 DOCKET NUMBER:  AR20180004843 


APPLICANT REQUESTS:  The applicant requests reconsideration of his request to upgrade his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for Review of Discharge) in lieu of DD Form 149(Application for Correction of Military Record)

.Letter, dated 9 February 2018 regarding documents provided with the application

.Pastor B_ J_ Letter/Character Reference

.Honorable Discharge Certificate, dated 9 September 1982

.WFNJ-MED-1 (Revised July 2008) (State of New Jersey Division of FamilyDevelopment Examination Report), during period 12 May 2012 to 15 May 2015

.Ten Certificates of Completion during period 19 August 2008 to 4 April 2011

.Five Credit Certificates during period 2 March 2010 to 3 April 2010



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20150010191 on 8 March 2016.

2.The applicant states he would like his discharge upgraded to obtain medical benefitsfor himself and his daughter.

3.On 4 October 1979, the applicant enlisted in the Regular Army for a term of 3 years.On 10 September 1982, he reenlisted for a term of 3 years, at the age of 23 years old.

4.After completing an overseas tour in Germany and various stateside assignments,on 12 January 1983, he was assigned to Fort Benning, GA.  On 20 June 1983, theapplicant underwent mental status evaluation and a medical examination:

a.DA Form 3822-R, shows the examiner found at the time of the applicant'sevaluation he was normal, fully alert, fully oriented, mood was unremarkable, his 
thinking was clear, his thought content was normal, and his memory was good.  The examiner determined that the applicant met the retention requirements of Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness), Chapter 3.  A behavioral science specialist made an entry in the remarks section stating "NAPD" (no apparent psychiatric disorder).  A medical doctor signed the mental status evaluation. 

b.SF 93 (Report of Medical History) shows the applicant indicated that his healthwas good.  He previously had or had at the time eye trouble, ear, nose, or throat trouble, pain or pressure in chest, broken bones, and trick or locked knee.  The examiner elaborated on the "yes" answers made by the applicant. 

c.SF 88 (Report of Medical Examination) shows the examiner determined that theapplicant's areas examined during the clinical evaluation were normal with the exception of a recent fracture of his right finger and bilateral hearing loss.  The examiner found that the applicant had no psychiatric disease and no mental or physical defects, which would warrant medical disposition.  He cleared the applicant for separation. 

5.On 13 July 1983, the applicant was hospitalized and released on 16 July 1983.  Hishealth records show that he was seen by a psychiatrist and the psychiatrist noted thathe was hospitalized for NP (nurse practitioner) observation after he was dragged out ofa burning house.  His condition had . . . (illegible) improved and stable but thepsychiatrist should see him one or two more times for out-patient supportive follow-up.On 21 July 1983, he was readmitted into the hospital for observation and released on23 July 1983.

6.On 22 September 1983, the applicant accepted nonjudicial punishment forwrongfully possessing less than 30 grams of marijuana on or about 13 July 1983 (thesame date he was hospitalized), a violation of Article 134, Uniform Code of MilitaryJustice (UCMJ).  He was punished to reduction to E-1, forfeiture of $150.00 pay for twomonths, and 45 days extra duty.

7.The applicant's record is void of a separation packet.  His record shows on28 October 1983, he was discharged under AR 635-200, Chapter 10, for the good of theservice-in lieu of court-martial.  His service was characterized as UOTHC.  Hecompleted 4 years and 25 days of his net active service this period and 1 year, 1 month,and 19 days of his 3-year contractual obligation.  His DD Form 214 (Certificate ofRelease or Discharge from Active Duty) shows he was awarded or authorized:

.Army Service Ribbon

.Overseas Service Ribbon

.Hand Grenade First Class Marksmanship Qualification Badge

.M-16 Rifle Marksman Marksmanship Qualification Badge


8.On 8 March 2016, the ABCMR denied the applicant's petition to upgrade hisdischarge; determining the evidence presented did not demonstrate the existence of aprobable error or injustice and the overall merits of his case were insufficient as a basisfor correction of his records.  In his DD Form 293, the applicant stated he was immatureand did things without thinking of the consequences.  He was very sorry for his pastbehavior.  He had been diagnosed with a mental disorder, which contributed to hisimmature actions.  Since that time, he had received proper treatment; he has changedhis life around; and he would love to have a new start in life.

9.The applicant provides:

a.Letter, dated 9 February 2018, listing the documents provided by the applicant





with his DD Form 293. b. Pastor J_ Letter, undated, attesting to the applicant's character as a member of his church. c. Honorable Discharge Certificate, dated 9 September 1982, showing the applicant was honorably discharged from the U.S. Army on this date. d. State of New Jersey Division of Family Development Examination Report, during period 12 May 2012 to 15 May 2015, revealed the applicant was diagnosed with schizoaffective and the date of onset was 2005.  He was hospitalized in 2001, 2002, and 2006.  He was diagnosed with cocaine induced psychotic disorder and the date of onset was also 2005.  He was hospitalized in 2006.  He was in prison from 2007 to 2012.  He participated in a substance abuse day program.   

e.Ten Certificates of Completion during period 19 August 2008 to 4 April 2011.

f.Five Credit Certificates during period 2 March 2010 to 3 April 2010.

10.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial bycourt martial.  Soldiers could request separation when charges have been preferredagainst them for which under the Uniform Code of Military Justice (UCMJ) and Manualfor Courts-Martial (MCM) 1969 (Revised) included a bad conduct or dishonorabledischarge.  Although an honorable or general discharge was authorized, an under otherthan honorable conditions discharge was normally considered appropriate.  A medicalexamination under the provisions of chapter 10 was not required, but may be requestedby the member in writing.  If requested, a mental status evaluation was also required.  Ifrequested, a copy of the medical examination and mental status evaluation was to beincluded in the separation packet proceedings.

11.The Office of the Undersecretary of Defense for Personnel and Readiness providesguidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault.  The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 

12.In reaching its determination, the Board can consider the applicant’s petition andservice record in accordance with the published equity, injustice, or clemency guidance.

13.Based on the applicant's reference to a medical condition(s) being the basis of hisseparation, the Army Review Boards Agency (ARBA) medical staff provided a medicalreview for the Board members.  See the "MEDICAL REVIEW" section."

MEDICAL REVIEW: 

1.The ARBA Medical Advisor reviewed the supporting documents and the applicant’smilitary service records.

2.A review of his hardcopy military medical record indicates he completed a mentalstatus examination and separation physical on 20 June 1983 as part of a Chapter 13separation.  He did not have any psychiatric symptoms or diagnoses and met retentionstandards IAW AR40-501.  On 13 July 1983, the applicant was admitted to the hospitalfor observation.  This was the same day he was found to be in possession of marijuanaso it is possible that he was impaired due to substance use.  He was discharged on16 July 1983.  On 18 July 1983, he was admitted to the hospital for observation afterbeing dragged out of a burning house.  A psychiatrist met with him on the medical wardand noted that “his condition remains improved and stable now.”  He recommended theapplicant follow-up in the outpatient clinic for supportive therapy after his hospitaldischarge.

3.An examination report from his civilian provider dated 15 May 2012 indicates he wasdiagnosed in 2005 with Schizoaffective Disorder and Cocaine Induced PsychoticDisorder.  His provider also noted he had three hospitalizations but no information wasprovided regarding the reason for each hospitalization.  A review of VA’s Joint LegacyViewer (JLV) indicates he has not been evaluated or treated in the VA system and doesnot have a service connected disability rating.

4.There is no documentation to support a behavioral health condition at the time of hisdischarge.  While he was diagnosed with Schizoaffective Disorder in 2005, this was 22years after his discharge.  In addition, he was evaluated while in the service and had nopsychiatric symptoms.  He was found to meet retention standards.  There are nodocumented psychiatric diagnoses to consider with respect to mitigation.  In addition,
there is no information regarding the misconduct that led to his discharge which also prohibits making an opinion regarding mitigation. 


BOARD DISCUSSION: 

1.The Board carefully considered the applicant's request, supporting documents,evidence in the records, a medical review, and published Department of Defenseguidance for liberal consideration of discharge upgrade requests. The Board consideredthe applicant's statement, his record of service, the frequency and nature of hismisconduct, and the reason for his separation. The Board considered the review andconclusions of the ARBA Medical Advisor based on available medical records.  TheBoard found insufficient evidence of in-service mitigating factors and noted the ARBAMedical Advisor's finding that there were no in-service psychiatric diagnoses.  TheBoard further noted that the available records do not document the specific misconductthat led to his discharge in lieu of trial by court-martial.  Though the Board consideredthe statement of support and certificates the applicant provided attesting to his post-service activities, without specific knowledge of the misconduct the Board did not findthat documentation sufficient to support a favorable recommendation in this case.Based on a preponderance of evidence, the Board determined that the character ofservice the applicant received upon separation was not in error or unjust.

2.The Board concurred with the corrections described in Administrative Note(s) below.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:: GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant partialamendment of the decision of the ABCMR set forth in Docket Number AR20150010191,dated 8 March 2016.  As a result, the Board recommends that all Department of theArmy records of the individual concerned be corrected by making the correctionsdescribed in Administrative Note(s) below.

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the applicant's character of service.

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. 


ADMINISTRATIVE NOTE(S): 

A review of the applicant's record shows his DD Form 214 (Certificate of Release or 
Discharge from Active Duty), for the period ending 28 October 1983, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): 

."SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"

."CONTINUOUS HONORABLE ACTIVE SERVICE FROM 791004 UNTIL820909"



REFERENCES: 

1.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, set forth the basic authority for the administrative separation ofenlisted personnel.

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits 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. 

b.A general discharge was a separation from the Army under honorable conditions.When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.When a member is to be issued a discharge under other than honorableconditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d.A Chapter 10 (Discharge for the Good of the Service) is a voluntary dischargerequest in-lieu of trial by court martial, applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 

e.A medical examination under the provisions of chapter 10 was not required, butmay be requested by the member in writing.  If requested, a mental status evaluation 
was also required.   If requested; a copy of the medical examination and mental status evaluation was to be included in the separation packet proceedings.  
 
2.  Army Regulation 40-501 (Standards of Medical Fitness) states, in pertinent part, if a member pending separation may request a medical examination in writing.  If a medical examination is requested by the member, then a mental status evaluation is required. 
 
3.  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 (TBI); sexual assault; or sexual harassment.  Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later.  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. 
 
4.  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.  
 
     a.  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 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.  
 
     b.  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.   
 
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