IN THE CASE OF: BOARD DATE: 20 August 2020 DOCKET NUMBER: AR20180005882 APPLICANT REQUESTS: Correction of his record to show an upgrade of his under other than honorable conditions (UOTHC) 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 27 April 1982 * Homeward Bound letter * Self-authored letter * Medical records 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 was not an alcoholic when he joined the service, but once he was in, there was peer pressure to drink. He was drunk on duty and physically assaulted another Soldier. He woke up in a German jail. The military said if he signed discharge papers, he could get out of jail and go home. He did not understand the ramifications of doing this. 3. A review of the applicant's official records shows: a. On 10 June 1980, the applicant enlisted in the Regular Army. b. The applicant's records are void of the separation documents leading to his separation. However, it contains three DA Forms 4187 (Personnel Action) showing the following: (1) On 27 September 1981, the applicant's duty status was changed from present for duty to ordinary leave. (2) On 16 October 1981, the applicant's duty status was changed from ordinary leave to absent without leave (AWOL). (3) On 13 November 1981, the applicant's duty status was changed from AWOL to present for duty. c. On 26 April 1982, the applicant's immediate commander completed a DA Form 268 (Report for Suspension of Favorable Personnel Actions) showing the action taken was elimination by "chapter 10." d. His DD Form 214 shows he was discharged on 27 April 1982 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and his service was characterized as UOTHC. He completed 1 year, 10 months, and 18 days of net active service. 4. The applicant provides: a. Homeward Bound letter that states, in pertinent part, the author was writing to verify that the applicant began receiving services with Homeward Bound's Supportive Services for Veteran Families (SSVF) program in June 2017. Through this program, he is offered financial assistance and case management to support the long-term goal of housing stabilization. The SSVF program assists clients in finding a home and provides financial assistance for obtaining housing. Additionally, they offer case management for up to one year to address all the obstacles one might encounter in maintaining housing and connecting to other community resources. b. Self-authored letter that states: (1) When he enlisted in the Army in June of 1980, he was 18 years old. The stress of military life got the better of him, and he ultimately turned to alcohol as a way to cope. It seemed to him at the time to be what everyone did, and so he did it often. In April 1982, his drinking led him to make a terrible mistake, for which he was truly sorry and regrets deeply today. Since being discharged in 1982, he has struggled with substance use to the point of becoming homeless and living in the woods for many years. He never learned any other way to cope with life, and using just made everything worse. (2) In June 2016, he began receiving services with Homeward Bound's Supportive Services for Veteran Families program. Through this program, he was offered financial assistance and case management. They helped him find a home and have been working with him to address all the obstacles and challenges that led him to homelessness, including substance use and access to mental health treatment. He is also now actively involved in a recovery support program at October Road. He is participating in several support groups including substance use, anger management, post-traumatic stress disorder (PTSD), and mental health. He is also receiving case management and weekly one-on-one counseling. (3) The positive experiences he has had since being connected with these resources has been life changing. He is connected to every resource that has been offered, and is eager to keep working on himself. Upgrading his military discharge status would help him further his goal of long-term self-sufficiency by giving him access to Veterans Affairs benefits including healthcare for physical and mental health services. c. Medical records providing a history of the applicant's psychiatric care and follow up treatment. 5. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 6. See applicable references below. MEDICAL REVIEW: 1. The applicant is applying to the ABCMR requesting discharge upgrade contending that mental health issues were responsible for his UOTHC discharge. The ABCMR has requested the Agency psychiatrist review this request. Documentation reviewed includes the applicant’s completed DD 149 and supporting documentation, his available military personnel records, applicant-provided civilian medical documentation and the VA electronic medical record (Joint Legacy Viewer (JLV)). No hard copy military medical records were provided for review. 2. Applicant-provided medical documentation consists of psychiatric records dated 11 June 2018. These records document that the applicant has been diagnosed with the following psychiatric conditions: bipolar I disorder with psychotic features, most recent episode manic; PTSD; attention deficit hyperactivity disorder; and binge-eating disorder. He has been prescribed the following psychiatric medications: Abilify (an antipsychotic), Haldol Decanoate (an antipsychotic), Wellbutrin XL (an antidepressant), Trileptal (a mood stabilizer/anticonvulsant), Gabapentin (anxiolytic, mood stabilizer) and Prazosin (a PTSD medication used to treat nightmares). 3. Review of the VA medical record, JLV, indicates that the applicant is not eligible for VA services because of his UOTHC discharge. He has received services from the VA for homelessness. His VA medical records contain no VA medical notes but they do contain a continuity of care document dated 18 August 2020. This document indicates that the applicant has been diagnosed with schizophrenia, bipolar disorder, PTSD, alcohol intoxication/withdrawal, marijuana abuse and tobacco abuse. 4. Based on the available information, it is the opinion of the Agency psychiatrist that the applicant has a mitigating behavioral health condition, PTSD. As PTSD is associated with avoidance behaviors, there is a nexus between his diagnosis of PTSD and his offense of absenting himself without leave. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, 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 PTSD claim and the review and conclusions of the Agency psychiatrist based on available medical records. 2. Although not documented in the applicant's military service record, the Board noted the applicant's statement regarding his alcohol use and assaulting another Soldier while drunk on duty. The Board also noted his period of AWOL and that he was discharged more than 5 months after he had returned to duty, during which time he may have committed other misconduct. The available records do not document the specific misconduct that led to court-martial charges against him. Without knowing the specific charges against him, the Board agreed that it cannot be determined whether or not PTSD or some other behavioral health issue was a mitigating factor in this case. 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 :X :X :X 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 PTSD; Traumatic Brain Injury; 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. 5. AR 15-185 (ABMCR) states in paragraph 2-9, the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005882 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1