IN THE CASE OF: BOARD DATE: 17 August 2020 DOCKET NUMBER: AR20180005961 APPLICANT REQUESTS: a discharge upgrade from Under Other Than Honorable Conditions (UOTHC) to Honorable due to medical reasons. 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 February 1985 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. A review of the applicant’s available service records reflects the following: a. On 9 March 1978 he enlisted in the United States Army Reserve (USAR) for 6 years. b. On 13 March 1978 he enlisted in the Regular Army for 3 years as a 19E (Armor Crewman). c. On 5 August 1981 he was promoted to the rank of Sergeant (SGT) / E-5. d. On 11 June 1984 his duty status was changed to “Absent Without Leave” (AWOL). e. On 10 July 1984 his duty status was changed to “Dropped from Rolls” (DFR). f. On 11 January 1985 he was returned to military custody. During questioning on 14 January 1985, he waived his rights and stated that his unauthorized departure was due to his wife’s filing for divorce. He adds that his chain command did not understand the seriousness of the problem. Prior to going AWOL, his wife attempted to commit suicide in his apartment. His nerves were shot, and he returned home to his parent’s house who assisted with obtaining counseling for him. His leadership provided a statement wherein they indicated that his unauthorized departure occurred while he was pending charges for “missing movement.” As a result, they recommended that he be discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) Chapter 10 with an Under Other Than Honorable Conditions (UOTHC) discharge. g. On 14 January 1985, he declined a separation medical examination. h. On 15 January 1985 (Order# 015-76) he was reassigned to the United States Army Personnel Control Facility effective 11 January 1985. His charge sheet indicates that he, without authority, was deemed absent from his unit from 11 June 1984 through 11 January 1985. i. On 16 January 1985 he voluntarily requested discharge in lieu of court martial for the good of the service under the provisions of AR 635-200, Chapter 10. Prior to submitting this request, he consulted with legal counsel. He acknowledged the possible effects of the UOTHC discharge. He declined submission of a written statement. j. On 18 January 1985 his commander recommended approval of his request for discharge. k. On 26 January 1985 the discharge authority approved his request for discharge directing that he be reduced to the lowest grade and furnished a UOTHC discharge. l. On 7 February 1985 (Order# 038-78) he was reduced to Private (PVT) / E-1 and reassigned to the United States Army transfer point pending discharge. m. On 21 February 1985 (DD Form 214) he was discharged from the Army under the provisions of AR 635-200, Chapter 10 – for the good of the service – in lieu of court martial; time lost reflects 11 June 1984 through 10 January 1985. He was therefore issued an UOTHC character of service. 3. The applicant provided his DD Form 214 reflective of 6 years 4 months and 8 days of active service. Additional details of this document is provided within 2m. above. 4. The applicant did not provide nor does a review of his available military records reflect documentation associated with a medical condition resulting in a permanent profile and or medical board proceedings indicating possible consideration for a medical discharge. 5. The applicant is applying to the ABCMR requesting a discharge upgrade for “medical reasons” contending that the misconduct leading to his UOTHC discharge was due to the emotional stress he experienced secondary to family and unit issues. The Agency psychiatrist was asked to review this case. Documentation reviewed includes the applicant’s completed DD149 and supporting documents, the available military personnel records and the VA electronic medical records (JLV-Joint Legacy Viewer). The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No hard copy military medical records or civilian medical documentation was provided for review. Review of the applicant’s available military personnel records indicates the following: He enlisted in the Regular Army on 13 March 1978. On 11 June 1984, his duty status was changed to Absent Without Leave (AWOL); on 10 July 1984, his duty status was changed to “Dropped from the Rolls”. On 11 Jan 1985, he was returned to military custody. During questioning on 14 Jan 1985, he stated that he encountered serious family problems upon returning from the field. His wife had filed for separation. He asked for leave but was refused. Two days before he went AWOL, his wife tried to commit suicide. He stated his nerves were shot and he returned to his parents’ home to get counseling. His leadership provided a statement which indicated that the applicant was pending charges for “missing movement” when his unauthorized departure occurred. The applicant voluntarily requested discharge in lieu of court martial for the good of the service. This request was approved. On 21 Feb 1985, he was separated from the Army with an Under Other Than Honorable Conditions discharge IAW AR 635-200, Chapter 10-for the good of the service, in lieu of trial by court martial; time lost reflects 11 June 1984 through 10 Jan 1985. Review of the VA electronic medical record (JLV) indicates that it contains no information regarding the applicant. After reviewing this case, it is the opinion of the Agency psychiatrist that there is insufficient medical evidence to support the applicant’s contention that the misconduct leading to his UOTHC discharge was due to “medical reasons” and/or emotional distress. Without supporting medical documentation, no decision regarding medical mitigation can be made. The medical advisor will gladly review any additional medical evidence related to the applicant’s time in service should he provide this evidence to the ABCMR at a future date. 5. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: After review of the application and all evidence, the Board found sufficient evidence to grant partial relief. 1. The Board found insufficient evidence to upgrade the applicant’s discharge characterization. a. The Board reviewed the applicant’s contentions and the evidence of record. The Board considered whether there were errors in the discharge process warranting a discharge upgrade and whether a discharge upgrade is otherwise warranted in the interest of justice. The Board found the applicant has not demonstrated by a preponderance of evidence that his other than honorable discharge should be upgraded to an honorable discharge. b. The Board agreed with the Medical Advisory opinion that there is insufficient medical evidence to support the applicant’s contention that the misconduct leading to his UOTHC discharge was due to “medical reasons” and/or emotional distress. Without supporting documentation, the Board agreed that there is insufficient evidence of a medical condition that may have mitigated the discharge. and an upgrade or change to the applicant’s discharge is not warranted. 2. However, the Board noted that the applicant did serve honorably during a portion of his enlistment. The applicant’s DA Form 2-1 indicates he was honorably discharged and reenlisted on 12 August 1980 and the applicant received the 1st award of the Army Good Conduct Medal for the period of 14 March 1978 to 13 March 1981. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 14 March 1978 to 13 March 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the under other than honorable conditions characterization of his discharge. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets 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. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. Army Regulation (AR) 15-185 (ABCMR) paragraph 2-9 states 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) AR20180005961 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1