ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20180014250 APPLICANT REQUESTS: reconsideration of is prior request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 149 continuation sheet * self-authored letter * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * Standard Form 93 (Report of Medical History) * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 1695 (Oath of Extension of Enlistment) * 8 service certificates * divorce decree * DD Form 458 (Charge Sheet) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * partial Department of Veterans Affairs (VA) Administrative Decision 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 AC88-06535 on 30 November 1988. 2. The applicant states: a. He had been aware of his UOTHC discharge, but never fully understood the exact reasons for the action. It was only after he received copies of his complete military records that he became aware of the injustice of the action. b. His Army personnel records reflect he was considered an outstanding Soldier for the first several years of his service. He reenlisted and had been promoted. After an injury in an auto accident in December 1983, he began to have emotional problems and sought counseling. His wife at the time had a Power of Attorney for him which she used to deplete their resources then divorce him. He had some problems with marijuana abuse which became worse under the stress of these events. c. Although he committed some offenses, they were all non-violent and not felonious in nature. The UOTHC determination was excessive under the circumstances and a general discharge would have been more appropriate. d. He is writing again after over 30 years of not being treated fairly, requesting an upgrade of his discharge so he can finally be recognized as having served his country. Still to this day he is denied the benefits other veterans receive and it is very mentally painful to him to not be recognized. This has caused him many problems throughout his life, to include divorce from his second wife and loss of his job. e. His records show he did well with his service being recognized for his participation in many events. He always strived to be the best and ready for any test, wherever in the world he was called upon. He left school to join the Army and finished high school at Big Bend Community College in 1982. He extended his enlistment and started his journey toward serving for 20 years. Things then went wrong when he was sued for divorce and lost everything. He has continued to serve his country in spite of all he endured. Please consider the documents he submitted with his request, to include his awards listed on his DD Form 214, which show his service should at least be characterized as general. 3. His Standard Form 93, dated June 1979, completed for the purpose of enlistment shows he was in good health and taking no medication, but he did annotate he had depression or excessive worry and dizziness. The applicant enlisted in the Regular Army on 5 September 1979. 4. Multiple DA Forms 2827 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), show he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following offenses: * 4 March 1980, for wrongfully having marijuana in his possession on or about 24 February 1980 * 26 September 1980, for willfully disobeying a lawful order from a superior noncommissioned officer and being disrespectful by telling him in a contemptuous manner “F__k you” and to another Sergeant, “”You’re a punk mother-f____er,”” kiss my a___,” and “f__k off” on or about 18 August 1980 5. He extended his enlistment by 3 years on 29 June 1982. 6. The applicant provided seven Certificates of Achievement and one German certificate, dated between October 1984 and November 1985, which show he was commended for: * professionalism during the Annual General Inspection * meritorious achievement during the Combat-in-Cities training exercise * scoring 300 on his Amy Physical Fitness Test on two occasions * participating in the Berlin Brigade Novice Boxing Championships * excellence in marksmanship * completing the Berlin 25 Kilometer road race 7. Records indicate he again accepted NJP on 15 April 1985 for wrongfully using and possessing the hashish form of marijuana on or about 21 January 1985 8. He provided a copy of McLennan County, TX divorce decree, which shows he and his wife were divorced on 10 July 1985. 9. A Standard Form 93, dated 19 August 1985, shows the applicant underwent medical examination on the dated of the form for the purpose of separation. The applicant annotated he was “attending mental health”, had frequent trouble sleeping, had nervous trouble, and was treated for a mental condition. The doctor annotated on the form the applicant had intense headaches, anxiety and was currently followed by mental health for marital problems. 10. A DD Form 458, dated 24 October 1985, shows he was charged on the date of the form with: * wrongfully using marijuana, in the hashish form in July 1985 * wrongfully possessing some amount of cocaine in July 1985 * wrongfully using marijuana, in hashish form, in August 1985 * wrongfully distributing an unknown amount of marijuana, in the hashish form to Private First Class (PFC) B____ J____ in August 1985 11. Accompanying the Charge Sheet is a DA Form 2823 (Sworn Statement), written by PFC B____ J____ stating he used hashish with the applicant and that the applicant sold him hashish about 6 times. 12. The applicant’s complete discharge packet is not in his available records for review, but a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 22 November 1985, shows: * a suspension of favorable personnel actions was initiated against the applicant on 3 October 1985 pending his elimination from the Army * the applicant’s request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 was approved and the applicant was to report to the U.S. Army Separation Transfer Point, Fort Dix, NJ, for separation processing on 26 November 1985 13. His DD Form 214 shows: * he was discharged on 27 November 1985, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of court- martial * he completed 6 years, 2 months, and 23 days of net active service * he was awarded or authorized the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Air Assault Badge, and the Army of Occupation Medal * his service was characterized as UOTHC * his immediate reenlistment this period was 5 September 1979 to 28 October 1982 14. The applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his UOTHC discharge and on 18 May 1987, he was informed the ADRB denied his request, having determined that he was properly and equitable discharged. 15. He subsequently applied to the ABCMR, requesting an upgrade of his UOTHC discharge, and on 30 November 1988, his request was denied based on a review of the available evidence. 16. The applicant provided a partial VA Administrative Decision document, dated 17 September 1987, which states: a. The applicant applied to the VA for an assessment of his discharge character in order to gain eligibility for VA loan guaranty benefits based on military service. Records indicated the applicant wrongfully used and distributed marijuana while in the service and admitted to drug and alcohol abuse. The applicant’s offenses showed a pattern of willful and persistent misconduct. b. The applicant’s discharge is considered UOTHC and constitutes a bar to benefits except for healthcare for any disability determined to be service connected. 17. On 11 June 2019, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion, which states, based on the available evidence, there is no indication the applicant failed to meet military medical retention standards of Army Regulation 635-40 (Standards of Medical Fitness) and there is no evidence he had a boardable mental health condition at the time of his discharge. The applicant does not have an in-service or post-service behavioral health diagnosis and there is no mitigating factor in the misconduct that led to his discharge from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant was provided a copy of the advisory opinion on 21 June 2019, and given an opportunity to submit comments. He responded on 27 June 2019, providing a copy of his Standard Form 93 at the time of his discharge, his divorce decree, numerous bills from a German Institution of higher learning for his daughter and seven certificates not previously provided. His rebuttal states: a. The advisory opinion contains many issues that transpired long after his time of service in the Army that have nothing to do with his application to upgrade his discharge. His case should focus on his time of service from 1979 through 1985 and not the time afterward, as that has nothing to do with his service. b. He not only has post-traumatic stress disorder (PTSD), but was also injured in two car accidents while in the Army and suffers from depression, stress, and anxiety. He was wrongfully discharged due to the prejudice of his commander. At the time of his discharge he did not have legal representation because he couldn’t afford any and he was denied financial aid. c. He was already punished for the possession of marijuana in 1980 and shouldn’t have been punished again for that. Double jeopardy is illegal. And he never possessed cocaine or sold anyone any drugs. How could he have possessed cocaine? People who buy drugs are not credible witnesses and will say anything without any evidence to lessen their own charges for buying drugs. d. He attended mental health appointments approximately 4-6 times while in the Army and is still receiving mental health treatment today from a psychologist. This should all be in his medical records and he cannot be held accountable for his service medical records being missing. e. In 2003, there was a power outage in Cleveland, OH and there was looting all over the city at night. He was arrested and brought to jail that night with no shirt and ripped pants and he knows he should not have entered that store, but he did not break into the store or steal anything. f. His application for VA housing assistance in 2015 ended up being denied and he continued to be homeless. The advisory opinion’s reference to the VA drug program in October 2018 is false. He successfully completed drug court in March 2019 and still attends today to support other veterans and help them start a better way of life. g. How is it possible that the ARBA psychologist is judging his situation and his health without even talking to him in person or having any contact with him in any way? He has never talked to a psychologist from the VA or the Army because help was always denied him. h. Today he can’t even donate blood or plasma because he served in Germany when Mad Cow Disease was discovered and because of that he is a health risk. He also got the Chicken Pox while in Berlin and now lives with the Shingle virus. Additionally, being divorced was really too much for him to handle. Everything was too much for him to handle so far away from home in Germany and he only stayed focused as much as he could by being committed and dedicated to his job as a Soldier. i. He was promised the education of his child would be supported by the military, and that he and his wife would be supported by the military, none of which ever happened. Today he is still in debt for his daughter’s education. 19. 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 DRBs and BCM/NRs 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. 20. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 21. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 22. Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance for the preparation of the DD Form 214. It states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. Enter in item 18 (Remarks) a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210- 791001; 791002-821001 23. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relative to transition management, to include the preparation of the DD Form 214. Its states: a. DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c. For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 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 consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include a period of continuous honorable service, the frequency and nature of his misconduct, a VA administrative decision and whether to apply clemency. The Board found that the advising official concluded that there was no evidence of a mitigating condition for the applicant’s misconduct. Based on a preponderance of evidence, the Board found that the applicant’s record of service, prior to the misconduct and the personal circumstances outlined in his statement support a determination in support of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 27 November 1985 to show in item 24 (Character of Service) – “General, under honorable conditions”. 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 characterization of his discharge to Honorable. 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): The Remarks section of the applicant’s DD Form 214 shows: //Immediate reenlistment this period: 790905-821028//. It does not state his continuous period of honorable active service covering the period 790905-821028, as that was not the DD Form 214 preparation standard at the time of his discharge. 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 Army Board for Correction of Military Records (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. 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 DRBs and BCM/NRs 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 5. Army Regulation 635-5 (Separation Documents), in effect at the time, provided guidance for the preparation of the DD Form 214. It states: a. A DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Enter in item 18 (Remarks) a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210- 791001; 791002-821001 6. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relative to transition management, to include the preparation of the DD Form 214. Its states: a. A DD Form 214 will not be prepared for Soldiers discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “IMMEDIATE REENLISTMENTS THIS PERIOD” and specify inclusive dates for each period of reenlistment in block 18 (Remarks) of the DD Form214. c. For Soldiers who have previously reenlisted without being issued a DD form 214 and are separated with any characterization of service except “Honorable”, enter in block 18 “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. ABCMR Record of Proceedings (cont) AR20180014250 9 1