IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20180005662 APPLICANT REQUESTS: Correction of his record to change his under other than honorable conditions discharge to an honorable or under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the review of Discharge from the Armed Forces of the United States), in lieu of, DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 August 1989 * Medical records * Centerstone treatment center letter FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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, in effect, he would like his discharge upgraded because he wants his Department of Veterans Affairs (VA) benefits, and for the benefit of his children. 3. A review of the applicant's official records shows the following: a. On 26 January 1982, the applicant enlisted in the Regular Army. b. On 16 February 1983, the applicant was arraigned at a special court-martial convened by the Commander, Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, KY, and was tried for violating the Uniform Code of Military Justice (UCMJ), Article 86. The court found him guilty of being absent without leave (AWOL) from 28 May – 20 December 1982. c. The court sentenced him to hard labor for 73 days. d. A DA Form 2-1 (Personnel Qualification Record) shows the applicant was AWOL during the following periods: * 28 May – 19 December 1982 * 24 June 1983 – 21 August 1985 * 22 August 1985 – 10 March 1989 e. On 11 March 1989, a DD Form 616 (Report of Return of Absentee) was completed showing the applicant was apprehended by civil authorities and subsequently returned to military control. f. On 21 March 1989: (1) A DD Form 458 (Charge Sheet) was completed by the Commander, Processing Company, U.S. Army Personnel Control Facility, Fort Ord, CA. The applicant was charged with one specification of being AWOL from on or about 24 June 1983 – 11 March 1989. (2) The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge the applicant indicated: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he did not desire further rehabilitation, he had no desire to perform further military service * he understood if the discharge request was approved he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may be ineligible for many or all benefits administered by the Army and Veterans Administration and he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * he elected not to submit a statement on his own behalf (3) A DA Form 2823 (Sworn Statement) was completed showing the applicant waived the statute of limitations for the Article 86 violation for the period of 24 June 1983 – 11 March 1989. g. On 4 August 1989, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10, and directed issuance of an under other than honorable conditions discharge. h. On 22 August 1989, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions characterization of service. This form also shows he completed 1 year, 3 months, and 19 days of active creditable service with lost time from: * 28 May – 19 December 1982 * 24 June 1983 – 25 January 1985 * time lost after normal expiration term of service 26 January 1985 – 10 March 1989 4. The applicant provides: a. Medical records showing the applicant had radiographs of his right knee, hip, and femur. b. Centerstone treatment center letter wherein the author states the applicant was a client and had a diagnosis of schizoaffective disorder, bipolar type; alcohol and cannabis dependence; and dissociative disorder. 5. 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 insufficient to determine the applicant had a psychiatric condition in service. Accordingly an upgrade is not recommended. However, the Board could consider a general characterization allowing the applicant to obtain VA behavioral health care. b. Due to the period of service, active duty medical records are void. The available electronic packet was void of hard copy medical records. c. The applicant submitted a “Certificate of Services and Psychiatric Diagnosis,” dated 21 November 2017, indicating diagnoses of schizoaffective disorder, alcohol and cannabis dependence, and dissociative identity disorder with medication prescribed. The certificate does not include the basis for the diagnoses, timeline of symptom presentation, or other pertinent factors. The applicant did not submit appointment notes, testing, or other behavioral health records for clarification. d. The applicant is not service connected and VA records are void of contact. 6. See applicable references below. 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 that the available documentation is insufficient to determine the applicant had a psychiatric condition in service. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 provides 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 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. 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// ABCMR Record of Proceedings (cont) AR20180005662 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1