ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 30 April 2020 DOCKET NUMBER: AR20180013255 APPLICANT REQUESTS: Her under honorable conditions (general) discharge be upgraded to an honorable 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), dated 24 June 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 April 1979 * a letter from the Disabled American Veterans (DAV), dated 12 June 2012 * CPAP Titration Report, dated 24 August 2013 * a letter from the Department of Veterans Affairs (VA), dated 21 November 2016 * a letter from the Medical University of South Carolina, dated 18 May 2018 * a medical report from the Charleston VA Medical Clinic, dated 6 December 2018 * audiogram results from Charleston Ear, Nose and Throat (ENT), dated 19 December 2018 * a letter from Charleston ENT, dated 2 January 2019 * medical notes, Charleston ENT, dated 9 January 2019 and 25 January 2019 * a letter from the Army Review Boards Agency, dated 19 March 2019 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 she has spent over 20 years trying to get her DD Form 214 upgraded because of medical conditions. She has a lot of medical problems, depression, and hearing loss. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 25 October 1978. She entered active duty on 17 November 1978 for the purpose of completing her initial entry training. 4. Court-martial charges were preferred against the applicant on 16 February 1979, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows she was charged with being absent from her unit without authority, from on or about 8 January 1978 through on or about 14 February 1979. 5. The applicant underwent a medical examination on 20 February 1979. A review of her Standard Form (SF) 93 (Report of Medical History) indicates she noted she was hospitalized for headaches caused by nervous tension. The relevant SF 88 (Report of Medical Examination) indicates she was qualified for administrative separation. 6. The applicant acknowledged she was advised of her right to remain in the Army to receive continued medical care and, if eligible, subsequent separation for physical disability. 7. The applicant consulted with legal counsel. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions (UOTHC) discharge, and the procedures and rights that were available to her. 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 her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. She further acknowledged she understood that if her discharge request was approved she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. c. She was advised she could submit any statements she desired in her behalf. In an attached statement, she stated she joined the USAR to try to start something better in life as a Petroleum Supply Specialist. Her recruiter got her hopes up. She was really looking forward to all of this. Her recruiter said she would really like Fort Dix. It was a very different story when she got there. She was on the verge of a nervous breakdown the entire time. She couldn't take it anymore because of her nervous condition, which is why she went AWOL. That is also why she wants out of the Army. 8. The applicant's immediate and intermediate commanders recommended approval of her request. The separation authority approved her request for discharge on 16 March 1979, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service and directed that she be reduced to the lowest enlisted grade and discharged UOTHC. 9. The applicant was discharged on 24 April 1979, under the provisions of Army Regulation 635-200, Chapter 10, by reason of conduct triable by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms her service was characterized as UOTHC. 10. 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. 11. The Army Discharge Review Board (ADRB) reviewed the applicant's request for a discharge upgrade on 9 July 1981. The ADRB determined that her discharge was proper but not equitable. She was granted partial relief with a discharge upgrade to under honorable conditions (general). Her DD Form 214 was corrected to show she had received a general discharge and she was issued a DD Form 257A (General Discharge Certificate). 12. The applicant provides multiple letters and reports that detail several of her current medical conditions. 13. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents submitted by the applicant. Based on the time of the applicant’s service there are no records available in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or the Health Artifacts Image Management Solutions (HAIMS). Limited documentation is available in the VA's Joint Legacy Viewer (JLV), but does not impact the opinion of the Agency Medical Advisor in this case. The following findings and recommendations are presented: The applicant is requesting her general discharge under honorable conditions be changed to an honorable discharge. The applicant enlisted in the USAR on 25 October 1978, and entered active duty for her initial entry training on 17 November 1978. The applicant’s entrance physical examination is not available for review. On 16 February 1979 the applicant was charged with being absent without leave authority from 8 January – 14 February 1979. The applicant voluntarily requested to be discharged from the Army IAW AR 635-200, Chapter 10, for the good of the service, in lieu of trial by court martial. Prior to her AWOL incident there are no records to indicate the applicant was suffering from any documented medical or behavioral health condition. A separation physical examination was completed on 20 February 1979 at which time the applicant indicated she had been hospitalized for headaches that were ultimately determined to be related to “nervous tension”. However, the dates of hospitalization are not included on the exam documents. The applicant was discharged on 24 April 1979 IAW AR 635-200, Chapter 10. 14. The Board should consider the applicant's statement and provided evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, and the reason for her separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of behavioral health conditions while in service, post-service achievements, or letters of reference in support of a clemency determination. 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. X CHAIRPERSON 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, in effect at the time, set 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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//