IN THE CASE OF: BOARD DATE: 27 March 2020 DOCKET NUMBER: AR20180013839 APPLICANT REQUESTS: * upgrading his under other than honorable conditions (UOTHC) discharge to an honorable discharge or an under honorable conditions (general) discharge * changing his narrative reason for separation to a medical separation or medical retirement 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) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060007978 on 28 November 2006. 2. The applicant requests his narrative reason for separation be changed from "in lieu of court-martial" to a medical separation. He states he had an accident suffering a head injury which caused him to have a traumatic brain injury and recurring migraine headaches. He knows his original paperwork for separation was for a medical separation or retirement. 3. The applicant did not provide evidence to support his contention he had an accident while on active duty causing him to incur a traumatic brain injury and recurring migraine headaches. He did not provide evidence from his military service treatment records showing he was injured in the line of duty and treated for his injuries by military or civilian providers. 4. The applicant’s military service treatment record is not available for the Board’s review from the National Archives. At the time of the applicant’s service in late 1999 the U.S. Army still maintained paper military service treatment records. The U.S. Army transitioned to electronic military service treatment records in 2003. 4. The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 23 September 1997. On 30 April 1998 he was discharged from the USAR and enlisted in the Regular Army for a period of 3 years. At the time of enlistment he was a private/pay grade E-1. He completed training and was awarded military occupational specialty 19K (Armorer Crewman). 5. His first duty station was Fort Hood, Texas where he was assigned to a cavalry unit. 6. On 12 October 1999 the applicant was dropped from the rolls of the Regular Army. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) documents this personnel action. He had gone absent without leave (AWOL) from Fort Hood, Texas on or about 13 September 1999. 7. On 24 December 1999 the applicant was apprehended by civilian authorities in Muldron, Oklahoma where he was detained in the county jail as recorded on DD Form 616 (Report of Return of Absentee). He was transferred to the Personnel Confinement Facility at Fort Sill, Oklahoma. 8. On 29 December 1999 the applicant was charged with absenting himself from his unit at Fort Hood, Texas from on or about 13 September 1999 to 24 December 1999, a period in excess of 30 days. A DD Form 458 (Charge Sheet) is filed in his official military personnel record as part of his administrative separation packet documenting his extended absence. 9. On 30 December 1999 the applicant consulted with military defense counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. Subsequent to receiving council, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * he had not been subjected to any coercion whatsoever by any person * he made the request of his own free will * he was guilty of the charges against him for AWOL from 13 September to 24 December 1999, a violation of Article 86 of the Uniform Code of Military Justice * he stated he did not desire rehabilitation or perform further military service * if his discharge request was accepted, he could be discharged UOTHC and reduced to the lowest enlisted rank of pay grade E-1 * as a result of the issuance of a UOTHC characterization of service he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Department of Veterans Affairs * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * he understood there was no automatic upgrading nor review by any government agency of an UOTHC discharge and that he would have to apply to the Army Discharge Review Board or the ABCMR if he wished to have his discharge reviewed * he did desire a separation physical evaluation * he elected not to submit statements with his request for discharge 10. On 10 April 2000 the applicant’s company commander transmitted the charge sheet to her higher authority by memorandum. She stated the applicant was AWOL for 102 days and he was apprehended by civilian authorities. He stated the reason he went absent was for personal reasons. He was single and a high school graduate. The commander concluded by stating, "Soldier has become disillusioned with the military." 11. On 24 April 2000 a Staff Judge Advocate serving as the Acting Chief, Criminal Law Division reviewed the applicant’s discharge request in lieu of court-martial and did not have any legal objections to the processing of the applicant’s request. 12. On 25 April 2000 the separation authority approved the applicant’s request for discharge in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10. The separation authority directed issuance of an UOTHC Discharge Certificate. 13. On 28 April 2000 personnel at Fort Sill, Oklahoma published Orders 119-0121 discharging the applicant from the Regular Army effective 10 May 2000. Accordingly, the applicant was discharged and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) documenting his service as follows. * Block 12 (Record of Service – Net Active Service This Period) – 1 year, 8 months, and 29 days * Block 23 (Type of Separation) – discharge * Block 24 (Characterization of Service) – UOTHC * Block 25 (Separation Authority) – Army Regulation 635-200, chapter 10 * Block 26 (Separation Code) – KFS * Block 28 (Narrative Reason for Separation) – in lieu of trial by court-martial * Block 29 (Dates of Time Lost During this Period) – under the provisions of Title 10, U.S. Code, section 972 for the period from 13 September 1999 to 23 December 1999 14. There is no indication the applicant requested a review of his discharge under the provisions of Title 10, U.S. Code, section 1553 through the Army Discharge Review Board. 15. The applicant applied to the ABCMR requesting the ABCMR correct his DD Form 214 to show he was medically discharged vice administratively separated. On 28 November 2006 the ABCMR met and denied the applicant’s request. 16. In the processing of this case a medical provider reviewed the available information stating, there is no documentation to support any behavioral health condition for consideration of mitigation of the misconduct that led to his discharge. There are no military medical records available and the applicant did not provide any medical record documenting his traumatic brain injury and recurring migraines. The applicant is not registered in the VA system. He does not have a service connected disability. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, there is no documentation to support a behavioral health diagnosis at the time of his discharge and thus no diagnosis to consider with respect to mitigating the misconduct. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, his apprehension by civil authorities, the preferred charges, his request for discharge and the reason for his separation. The Board considered the review and conclusion of the medical advising official. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct and 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 :XXX :XXX :XXX 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government and it is the prerogative of the Secretary of the Army. e. Chapter 10 provides for an enlisted Soldier who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 2. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation program designator (SPD) codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD KFS is the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs; medical fitness standards for retention and separation including retirement; medical standards. a. It is the responsibility of each Soldier to maintain his/her individual medical and dental readiness requirements, and report health issued that may affect their readiness to deploy or be retained to continue serving. The maintenance of good strength and aerobic conditioning is of prime importance to the Army Soldier. Many retention standards reference a Soldier’s ability to perform duty. Evaluation of performance of duty should consider the completion of the Army physical fitness test (APFT) and the ability to perform the basic soldiering tasks and, if applicable, the ability to perform the Soldier’s military occupational duties at the minimum level of fitness expected from the Soldier and the occupational physical assessment test. b. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) lists the various medical conditions and physical defects which may render a Soldier unfit for further military service due to falling below acceptable medical fitness standards. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards will be referred to a disability evaluation system as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The physical evaluation board, part of the disability evaluation system, will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. c. Possession of one or more of the disqualifying conditions listed in chapter 3 does not mean automatic retirement or separation from the Service. Soldiers with any medical condition, injury, or defect (individually or in combination) that meets the definition of a disqualifying medical condition or physical defect will be referred to the disability evaluation system. d. Paragraph 3-31 (Neurological - Migraine, tension, or cluster headaches) states when manifested by incapacitating attacks that interfere with duty or social activities three or more days per month, all such Soldiers will be referred to a neurologist, who will ascertain the cause of the headaches. The neurologist will determine whether prophylactic therapy (up to 6 months) or referral to the disability evaluation system is warranted. If the headaches are not adequately controlled at the end of the 6 months, the Soldier will be referred to the disability evaluation system. If the neurologist feels the Soldier is unlikely to respond to therapy, the Soldier can be referred directly to the disability evaluation system. If, after adequate treatment for traumatic brain injury, there remain residual symptoms and impairment to such a degree as to meet the definition of a disqualifying medical condition or physical defect, referral to the disability evaluation system is required. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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) AR20180013839 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1