IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20180005713 APPLICANT REQUESTS: correction of his record to upgrade his under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 August 1983 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 he requests an honorable discharge for his five years and one month of service. He was injured in service. His head, hip, and back injuries were never reported because he realized the U.S. Army wanted him strong. Also, he did a funeral in basic training upon turning 20 years of age with the drill sergeants. He entered service at 19 years of age and certain training was neglected by the U.S. Army. He was a dedicated devoted Soldier and was forced to do drugs when he was in the service, as well as being threatened by word of mouth from another Soldier he had never seen in his unit that he had a gun and a terrible temper. He believes these Soldiers had the key to the arms room and they intended to kill him, and as a result, he went absent without leave (AWOL). 3. A review of the applicant's official records shows: a. On 2 November 1977, the applicant enlisted in the Regular Army. b. The applicant was in an AWOL status from his Fort Ord, CA unit on two occasions: * 20 – 23 March 1983 * 29 March – 3 June 1983 c. On 4 May 1983, a DA Form 4187 (Personnel Action) was completed by the commander A Company, 7th Support and Transportation Battalion, Fort Ord, changing the applicant's duty status from AWOL to dropped from the Army rolls (DFR). d. On 21 June 1983: (1) A DA Form 4187 was completed by the commander U.S. Army Personnel Control Facility, Fort Bragg, NC, changing the applicant's duty status from DFR to present for duty. (2) A DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Bragg. The applicant was charged with one specification of being AWOL from on or about 29 March to 4 June 1983. e. On 6 July 1983, 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 Uniform Code of Military Justice (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 * it is void of an election to submit or not submit a statement on his own behalf f. On 2 August 1983, 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. g. On 9 August 1983, 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 5 years, 6 months, and 29 days of active creditable service with lost time from * 20 – 23 March 1983 * 29 March – 3 June 1983 4. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records. The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions (UOTHC) discharge was due to the fact he was being threatened and terrorized by some unidentified service members. He also reports that he injured his head, hip and back while on active duty but never reported it. Finally, he reports that he was forced to do drugs while in the Army. a. Documentation reviewed includes the applicant’s DD149 and supporting documentation, his military separation paperwork and the VA electronic medical record (JLV). The military electronic medical record (AHLTA) 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. b. Review of the applicant’s military separation documentation indicates he requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service, in lieu of trial by court martial. On 2 August 1983, his request was approved by the separation authority and on 9 August 1983, he was discharged from active duty. His DD Form 214 indicates the following lost time: 20-23 March 1983; 29 March-3 June 1983. c. Review of the VA electronic medical record (JLV) indicates that the applicant has received the following behavioral health (BH) diagnosis: paranoid schizophrenia. There is no indication in his VA medical records of the date of onset of his paranoid schizophrenia. d. To summarize, the applicant was separated from the Army with an UOTHC discharge in 1983. Review of his military records indicates he was separated under provisions of AR 635-200, chapter 10, for the good of the service, in lieu of trial by court martial. His misconduct consisted of two incidents of being AWOL. e. Review of the applicant’s VA medical records indicates that he has been diagnosed with paranoid schizophrenia. The first mention of this diagnosis in the applicant’s VA records is found in a medical note written over 20 years after his discharge from the military. This 10 December 2014 Psychiatric Admission Evaluation Note states: “…The patient has a long history of schizophrenia…” However, there is no mention in the VA medical records of the date of onset of the applicant’s schizophrenia. Without medical documentation of the date of onset, no nexus between the applicant’s diagnosis of paranoid schizophrenia and his military misconduct can be made. If the applicant submits additional medical documentation, specifically medical documents that support his psychiatric condition and are linked to and/or proximal to his time in service, an Agency behavioral health advisor will gladly reevaluate his request. 5. 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 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 without medical documentation of the date of onset, no nexus between the applicant’s diagnosis of paranoid schizophrenia and his military misconduct can be made. 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. Army Regulation (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 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) AR20180005713 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1