BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20180009099 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. 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 1 June 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 that not everyone who is mentally ill realizes that they are mentally ill. This is because they are sick and can’t understand what’s going on but they know something is wrong. He became mentally ill while serving in the military but didn’t know it until years later, when he was diagnosed as being bipolar with attention deficit and hyperactivity disorder (ADHD), anxiety, and depression. He will send records from his Supplemental Security Income (SSI). He was first treated at Beth Israel Hospital in New York City. 3. The applicant enlisted in the Regular Army on 10 November 1977. 4. The applicant accepted non-judicial punishment (NJP) on 20 July 1978, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * failing to go at the prescribed time to his appointed place of duty, on or about 6 July 1978 * failing to go at the prescribed time to his appointed place of duty, on or about 13 July 1978 * being disrespectful in deportment towards his superior noncommissioned officer (NCO), on or about 13 July 1978 5. Court-martial charges were preferred against the applicant for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with two specifications of being absent without leave (AWOL), from on or about 4 May 1979 through on or about 17 May 1979 and from on or about 18 June 1979 through on or about 5 November 1979. 6. The applicant underwent a mental status evaluation and separation physical examination on 7 November 1979. a. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had no significant mental illness, was mentally responsible, was able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. b. The relevant Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination) show he was in good health. The examining physician noted a scar over his left eyebrow, no significant medical history, and cleared him for separation. 7. The applicant consulted with legal counsel on 7 November 1979. 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 bad conduct 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 (Personnel Separations – Enlisted Personnel), 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 Veterans Administration, 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 own behalf; however, he elected not to submit any statements. 8. The applicant’s immediate commander recommended approval of his discharge request on 8 November 1979, in lieu of trial by court-martial, with a UOTHC discharge. The commander noted the following statements in his recommendation: Service member [SM] stated that his approximately 153 days of AWOL were caused by his intense dislike for the Army. SM states that he has been punished for four other periods of AWOL. M_ assures me that he would go AWOL again and does not want to defend himself. SM desires mainly to be discharged from the service with a less than honorable discharge. SM was apprehended by civil authorities. 9. The applicant’s intermediate commander recommended approval of his request for separation with a UOTHC discharge. 10. The XVIII Airborne Corps and Fort Bragg Staff Judge Advocate recommended approval of his separation request with an UOTHC discharge on 29 November 1979. 11. Consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge on 3 December 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 12. The applicant was discharged on 12 December 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 13. 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. 14. The applicant’s service records are void of evidence to show he suffered from a mental condition at the time of his separation. 15. In the processing of this case, the Army Review Boards Agency Case Management Division requested the applicant provide a copy of medical documents to support his claims of mental health conditions of ADHD, bipolar disorder, anxiety, and depression. The applicant failed to respond to this request. 16. 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) were not in use at the time of his service. His hardcopy military medical records were not available for review. A review of his separation packet indicates he was evaluated for medical and psychiatric conditions on 7 November 1979 and met retention standards in accordance with Army Regulation 40-501. A review of the Department of Veterans Affairs' Joint Legacy Viewer (JLV) indicates the applicant has not been diagnosed or treated in their system. He does not have a service connected disability rating. The applicant asserts he has been diagnosed with bipolar, ADHD, anxiety, and depression, but no civilian medical records were provided for review. There is no documentation to support a behavioral health condition at the time of his discharge. He met retention standards at the time of his discharge. There are no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. 17. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 regarding his misconduct not being mitigated by a behavioral health condition. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs) on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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// ABCMR Record of Proceedings (cont) AR20180009099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180009099 7 ABCMR Record of Proceedings (cont) AR20180009099 5