ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  4 August 2020 DOCKET NUMBER:  AR20180005048 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 August 1982, to show he was separated by reason of physical disability. 

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), dated 16 November 2017

.National Guard Bureau (NGB) Form 22 (Report of Separation and Record ofService), for the period ending 25 August 1977

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 19 August 1982



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant recounts an incident where he was in a convoy when the lead vehiclerolled over.  He first assisted the driver and then went around to assist the passenger.The passenger was a new buddy and he was crushed inside the vehicle.  He froze andwas unable to do anything for the dying Soldier.  Another Soldier gave the injuredSoldier CPR but he died on the way to the hospital.  He remembers the dying Soldierjust staring at him.  He felt ashamed that he did not try to do more and blames himselffor his death.  Following the incident, he felt helpless and couldn't sleep withoutnightmares; until recently, he has not been able to tell anyone about it.  He keepsseeing the vehicle rolling over again with the Soldier staring at him.  After the accident,he failed to return from leave until he was picked up by local police and returned to themilitary.  He was offered to remain on active duty with a reduction in grade but he wasso shaken up over the guilt that he felt he was not worthy to stay in.



























3.Following prior honorable service in the Regular Army and Army National Guard, theapplicant reenlisted in the Regular Army on 26 August 1977.4.The available record contains three copies of a DA Forms 2627-1 (Record ofProceedings under Article 15, UCMJ [Uniform Code of Military Justice]).  Two of theforms predate the applicant's period of service under consideration.5.The applicant accepted nonjudicial punishment (NJP) on 17 July 1978, under theprovisions of Article 15 of the UCMJ, for failing to go to his place of duty and for missingcompany movement through neglect, both instances on or about 6 July 1978.6.The available record does not contain any of the applicant's separation processingdocumentation.7.The applicant was discharged on 19 August 1982.  The DD Form 214 he was issuedshows he was discharged under the provisions of Army Regulation 635-200 (PersonnelSeparations – Enlisted Personnel), paragraph 14- 23, for misconduct – absence withoutleave (AWOL), and his service characterization was UOTHC.  His DD Form 214 furthershows:•he was discharged in the rank/grade of private/E-1•he had one year, four months, and 23 days of active duty service during thisperiod•he had 136 day of service in excess leave status•he was AWOL from 14 August 1978 through 1 March 19828.The applicant's record documents no acts of valor, significant achievement, orservice warranting special recognition.9.The applicant has not provided and the record does not contain any evidence tosupport his contention that he suffers from an in-service stressor (as he recounts), orthat shows he was diagnosed with a mental health disability.  His record provides noindication of a medical or mental health condition during his period of service, of suchseverity as to warrant his referral to the Army Physical Disability Evaluation System(PDES).10.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service.  The Army disabilityrating is to compensate the individual for the loss of a military career.11.The Agency psychiatrist was asked by the ABCMR to review this case.  Theapplicant is applying to the ABCMR requesting a discharge upgrade contending that themisconduct leading to his Under Other Than Honorable Conditions (UOTHC) discharge
was due to the trauma he experienced when he witnessed a fellow soldier die in atraining accident. He is also requesting that his DD214 be amended to show he was separated by reason of physical disability.  Documentation reviewed includes the applicant’s completed DD149 and supporting documentation, available military records and the VA electronic medical record (Joint Legacy Viewer-JLV). The military electronic medical record was not reviewed as it was not in use during the applicant’s period of service. No hard copy military medical records or civilian medical documentation was provided.  In his DD 149, the applicant states he witnessed his fellow soldier get killed via a crush injury in a training accident. He reports he blames himself for the accident and is ashamed he could not do more for the injured soldier. Following the incident, he could not sleep without nightmares and he failed to return from leave after the accident.  The applicant’s available military personnel records indicate that he enlisted in the Regular Army on 26 Aug 1977. During this term of service he received an Article 15 of the UCMJ for failing to go to his place of duty and for missing company movement. He was discharged on 19 Aug 1982. His DD form 214 indicates that he was discharged IAW AR 635-200, paragraph 14-23, for misconduct-Absence without Leave (AWOL); his service characterization was UOTHC. His DD214 also indicates that he was AWOL from 14 Aug 1978 through 1 March 1982.  Review of the VA electronic medical record (JLV) indicates that the applicant is 0% service connected for a benign skin neoplasm. The VA has diagnosed him with the following Behavioral Health conditions: Major Depressive Disorder (17 March 2015); PTSD (27 Oct 2014). He has reported to the VA three separate military-related traumatic events: while deployed to Korea, he refused to pick a side between the “Malcolm X/Black Panther” movement and he became a target for persecution and violence, living in fear every day; while in a convoy stateside, he witnessed a vehicle roll over, trapping the two occupants inside. The applicant was first upon the scene; he helped one of the soldiers but the other soldier, who was crushed, died at the scene. He reported feeling guilty for not doing more to help this soldier; the third event involved finding out that two of his friends had drowned after he departed their company the night before after he refused to jump in the river with them. Following this third event, he reports he went AWOL.  After reviewing all the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychiatrist that the applicant has a mitigating Behavioral Health condition, PTSD. As PTSD is associated with avoidance behavior, there is a nexus between his diagnosis of PTSD and his absenting himself without leave from 14 Aug 1978 through 1 March 1982.  The applicant has also requested that his DD214 be amended to show he was separated by reason of physical disability. There is no indication in his military records that he failed to meet military retention standards IAW AR 40-501. There is also no documentation of any medical or mental health condition during his period of service of such severity that it would warrant a referral to the Army Physical Disability Evaluation System. Therefore, it is the conclusion of the Agency psychiatrist that there is insufficient evidence to support the applicant’s request that his DD214 be amended to show he was separated by reason of physical disability. 

12.The Board should consider the applicant's award prior honorable service, hispersonal statement, and his over 3 and a half years of AWOL for consideration grantingrelief in accordance with the published equity, injustice, or clemency determinationguidance.

BOARD DISCUSSION: 

The Board carefully considered the applicant’s contentions and request to upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and correct his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 19 August 1982, to show he was separated by reason of physical disability.  After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The Board agreed with the Medical Advisory Opinion that there is no indication in his military records that he failed to meet military medical retention standards IAW AR 40-501. The Board found no documentation of any medical or mental health condition during the applicant’s period of service of such severity that it would warrant a referral to the Army Physical Disability Evaluation System. Therefore, the Board found insufficient evidence to support the applicant’s request that his DD214 be amended to show he was separated by reason of physical disability. 
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. 


ADMINISTRATIVE NOTE(S): 

Not Applicable 

REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.  Title 10, USC, Section 1201, provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30 percent (%) or greater. 
 
3.  Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 
 
4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.   
 
 a.  Paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. 
 
 b.  Paragraph 3-2b(1), provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and he can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 
 
 c.  Paragraph 4-3 states that an enlisted Soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. 
 
5.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  It provides: 
 
 a.  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. 
 
 b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  
 
 c.  Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct.  Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed.  Paragraph 14-23, as then in effect, applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 
 
6.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 
 
7.  The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum].  The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating 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. 
 
 a.  Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 
 
 b.  An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 
 
 c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 
 
8.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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.   
 
 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, Boards 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. 
 
//NOTHING FOLLOWS//