ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180013829 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to honorable or to general under honorable conditions. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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: a. While he was in the service, he was suffering from insomnia, anxiety, and nightmares. He expressed his health issues to his chain of command but was told that unfortunately, military service was not for everyone. They recommended he get a discharge. b. Not once was he ever told that his discharge would be considered other than honorable. During his time in service, he performed his duties to the best of his abilities and he requests that this be taken into consideration. c. During his service, he went to the medics only once or twice. He explained to them about his anxiety and insomnia but was told to simply return to the barracks and try to get some sleep. d. He is very upset and disheartened to find his discharge to be other than honorable. He requests the Board take into consideration that during his conversation with his command, it was suggested that he separate. He was also told it was unfortunate if he separated but "but the military is not for everyone." He did his duties with respect and he followed all orders. He asks to have his discharge changed from other than honorable to an honorable form. e. There were times that his anxiety got so bad he had to visit his family in order to feel any relief and would finally be able to sleep, but would sleep for days which caused him to be considered absent without leave (AWOL). This was never his intention. He had every intention of returning to base, however, he would lose track of time due to insomnia and anxiety. f. He was diagnosed with macular degeneration shortly after his exit and he is now legally blind. He would truly appreciate being able to have access to medical care for his service to the Army. 3. The applicant enlisted in the Regular Army on 16 January 1976. 4. He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 3 March 1976 for being AWOL during the period 28 February to 2 March 1976 and on 27 April 1976 for being AWOL from 1 April to 21 April 1976. 5. The applicant's records show he again departed AWOL on 5 August 1976 and remained AWOL until surrendering to civilian authorities on 27 September 1976. 6. The applicant's records are void of a DA Form 458 (Charge Sheet); however, his records show that on 26 October 1976, he consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. 7. In his request for discharge, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he was making the request on his own free will * he had not been subjected to coercion with respect to his request for discharge * he was guilty of the charges against him * he had been advised of the implications that were attached to the discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veteran's Administration * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 8. On 27 October 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate. 9. A Standard Form 88 (Report of Medical Examination) shows the applicant underwent a medical examination prior to his separation in which he indicated that he was in good health. 10. A DA Form 2496 (Disposition Form), subject: Mental Status Examination, shows that on 2 November 1976, the applicant underwent a mental status examination. The form shows that no significant mental illness was discovered and that he was found mentally responsible, able to distinguish right from wrong, and able to adhere to the right. The form also shows he was found to meet the retention standards prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 11. The applicant's DD Form 214 confirms he was discharged on 5 November 1976 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions. The DD Form 214 also shows he was credited with 6 months active duty service and that he accrued 80 days of lost time. 12. On 21 August 2019, the Army Review Boards Agency psychologist/medical advisor provided an advisory opinion. The advisory found no evidence of a mental and/or physical medical condition that would mitigate the applicant's misconduct which led to his discharge under other than honorable conditions. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 21 August 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s 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, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the conclusions in the medical advisory opinion and found insufficient in-service mitigation for the applicant’s misconduct. The Board found the applicant provided no evidence of 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provides 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 Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if warranted. b. 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. c. 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. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of their service. 4. 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 service discharge review boards and service boards for correction of military/naval records 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 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. ABCMR Record of Proceedings (cont) AR20180013829 4 1