ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20180005569 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 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), dated 20 November 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 July 1986 * DD Form 214, for the period ending 28 April 1992 * one third party letters of support * Letter, National Personnel Records Center (NPRC), dated 3 April 2018 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 Military Records (ABCMR) 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 he was in the service for a long time. His service record was very good, and he did not have any problems. He was going to the board. He was doing great. Whatever happened in the war messed him up. He needed help after the war. 3. The applicant enlisted in the Regular Army on 30 September 1983. He was discharged on 29 July 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 4, by reason of expiration term of service. His DD Form 214 confirms his discharge was honorable and he was credited with two years and 10 months of active service. His awards include the following: * Army Service Ribbon * Overseas Service Ribbon 1 * Army Good Conduct Medal 4. The applicant enlisted in the Regular Army on 6 April 1988. 5. A U.S. Army Armor Center (USAARMC) Form 2722 (Medical Examination for Separation – Statement of Options), dated 28 February 1992, indicates he elected not to undergo a separation medical examination. 6. Court-martial charges were preferred against the applicant on 5 March 1992, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being absent without authority (AWOL), from on or about 17 January 1992 through on or about 26 February 1992. 7. The applicant consulted with legal counsel on or about 5 March 1992. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. In a self-authored statement, the applicant noted that he had been on leave because his son was in the hospital. At the end of his leave, he requested a five day extension from his first sergeant so he would not become AWOL. The first sergeant told him to contact the commander, whom he knew to be in the field. A noncommissioned officer (NCO) contacted the commander to request the five day extension. The commander granted him a three day extension. When he had enough money to get to St Louis, MO, he turned himself in. He was then transported to Fort Knox, KY. Based on this information, he requested a general discharge. 8. The separation authority approved the applicant's request for discharge on 10 April 1992, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed that he be reduced to the lowest enlisted grade and the issuance of an UOTHC discharge. 9. The applicant was discharged on 28 April 1992, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with three years, 11 months, 14 days of active service this period, with service in Southwest Asia from 1 January 1991 through 15 June 1991. His awards include the following: * Southwest Asia Service Medal with 3 Bronze Stars * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides a third party letter of support for consideration. His sister states the following: a. He got hurt at Fort Hunter Liggett, CA, during the time of Desert Storm. He injured his head, lower back and shoulder on the left side. He was a different person when he came back from Desert Storm, and he is still trying to cope with it today. b. If he would have had help from the VA as soon as he returned, it might have helped him. He talks to himself and gets angry fast. If you walk up on him while he is talking, you would think there was someone with him. He still complains of his left side, back and shoulder hurting him. He still needs help coping with whatever happened to him during his time in the Army. 12. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of VA’s Joint Legacy Viewer (JLV) indicates he was hospitalized on 31 Jul 2016 due to delusions and severe intoxication. He was diagnosed with Major Depressive Disorder, Alcohol Use Disorder and Insomnia Disorder. His delusions were regarding his belief that his sister had recently been murdered by her husband (occurred in 2007) and he saw his brother-in-law (not possible as he is incarcerated for murder). He also believed his cousin’s murder had just happened (occurred 4-5 years prior). The applicant reported intent to harm his brother-in-law not remembering he was incarcerated for his sister’s murder. On 24 Aug 2017, he was diagnosed with PTSD related to his Gulf War service. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. There is no documentation to indicate he did not meet retention standards at the time of his discharge. In accordance with liberal guidance, PTSD is considered a mitigating factor for the misconduct that led to his discharge. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered his record of service, a previous honorable discharge, the nature of his misconduct, turning himself in and the reason for his separation. The Board considered the review and conclusions of the medical advising official. After reviewing the application and all supporting evidence, including the applicant’s statement and the ARBA Medical Advisory Opinion, the Board found that full relief was warranted. In accordance with the Liberal Consideration guidance, the Board agreed with the ARBA psychiatrist that there is documentation to support a behavioral health condition at the time of his discharge, which mitigated the behavior leading to his Under Other Than Honorable discharge. Additionally, the Board found clemency grounds for an upgrade based on his service in Iraq. Therefore, the Board found that an “Honorable” discharge is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending “92-04-06” showing: 1. his characterization of service (item 24) as “Honorable,” 2. the separation authority (item 25) as “AR 635-200, para 5-3,” 3. the separation code (item 26) of “JFF.” 4. and the narrative reason (item 28) as “Secretarial Authority,” X CHAIRPERSON 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. 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 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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//