ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20180014315 APPLICANT REQUESTS: * In effect, upgrade his uncharacterized character of service to honorable for his separation from initial entry training (IET) on 17 February 1989 * Upgrade of his under other than honorable conditions discharge to honorable for his Regular Army separation on 5 February 1992 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Social Security Administration (SSA) Office of Hearings and Appeals Decision * Treatment Plan Formulation * Letter from physician * Three Clinical Notes * Army Review Boards (ARBA) letter * Laboratory report FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he initially served in the Montana Army National Guard (MTARNG). After successfully completing IET, in 1989, he was released from active duty (REFRAD) with an uncharacterized character of service; he later enlisted into the Regular Army. Prior to his Regular Army separation, he began to suffer from a number of behavioral health issues, and these issues caused him to become absent without leave (AWOL); on 5 February 1992, he was discharged under other than honorable conditions, based on his period of AWOL. Following his discharge, he was convicted for a crime (unrelated to his military service) in a civilian court. As a result, he 1 has been in prison since November 1993, and he is scheduled for release in early 2020. The applicant offered additional details in a self-authored statement: a. He believes his case warrants the upgrade of his under other than honorable conditions character of service based on his behavioral health issues, specifically: bipolar disorder (schizotypal) (i.e. displaying behaviors common to both bipolar disorder and schizophrenia) and anxiety issues. He states he had submitted an earlier application, and a request for a personal appearance, to the Army Discharge Review Board (ADRB), but he was unable to attend because of his incarceration. b. He also filed for Social Security SSI (supplemental security income) shortly after a hospitalization for depression and anxiety; the SSA's administrative law judge ruled in his favor in 1994. c. He went AWOL because of marital and other issues, and, as he mentioned earlier, he was also suffering from bipolar disorders, anxiety, and schizophrenia. His doctors later prescribed him anti-depressants, but the medications only worsened his mania and psychotic episodes; he began to experience panic attacks. d. While in prison, the doctors placed him in therapy and started him on Lithium (commonly prescribed for treating bipolar disorder and major depressive disorder). While not completely alleviating his care issues, the treatments proved largely successful. The treatment also helped him recognize that some of his issues could has been caused by witnessing the death of a little girl (described by the applicant as his "?? Girlfriend"); they were both about 9 years old, and the little girl was run down by a truck less than 5 feet from the applicant. She sustained horrific injuries and died screaming in the street. 3. The applicant provides: a. SSA Office of Hearings and Appeals Decision, dated 23 March 1994, in which an administrative judge determined the applicant was entitled to a period of disability, commencing on 4 November 1991; the judge found that the applicant's disabilities were severe, and consisted of affective disorder, anxiety-related disorder, and personality disorder. b. Treatment Plan Formulation, dated 9 December 1998, showing the applicant's presenting problems for treatment included: instability (bipolar by history), refusal of medication, threats of self-injury, and the applicant throwing food out of his cell. The treatment plan further recounts the applicant's psychiatric history, and lists prior behavioral health diagnoses, beginning in 1991, and including dysthymia (mild, but long-term depression); major depressive disorder; severe personality disorders; severe affective disorder with psychotic features; and anxiety disorder. c. A letter, dated 3 December 1999, from a cardiologist and addressed to the applicant's physician, in which the cardiologist stated the applicant was evaluated after having had heart palpitations. The cardiologist indicated the applicant's medical history showed bipolar disorder, hypertension, and premature ventricular contractions (extra, abnormal heartbeats that begin in the ventricles (lower pumping chambers)). d. Additional medical documents: * Two clinical notes, respectively dated 21 February 2012 and 4 November 2016; both of which affirm the applicant's bipolar disorder and reflect treatment goals and interventions * Laboratory report indicating the presence of Lithium in the applicant's blood * Clinical Note, dated 11 September 2012; the applicant reported feelings of depression and suicidal ideation; he was "medication-compliant," denied feeling guilty for his crimes, but stated he had given the victim money outside of regular restitutions, and, if he could have, he would have done more 4. The applicant's service records show: a. On 20 September 1988, the applicant enlisted into the MTARNG for 8 years. His service record provides evidence that, on 26 September 1988, he entered active duty to complete IET, was awarded military occupational specialty (MOS) 62J (General Construction Equipment Operator), and was then REFRAD, on 17 February 1989, with an uncharacterized character of service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 4 (Separation for Expiration of Service Obligation). The applicant's DD Form 214 indicates he then returned to his MTARNG unit. b. Effective 28 February 1990, the MTARNG honorably discharged the applicant and transferred him to the U.S. Army Reserve Individual Ready Reserve so that he could complete his remaining military service obligation. c. On 15 November 1990, the applicant enlisted into the Regular Army, in the rank/grade of private (PV2)/E-2, for a 4-year term. On completion of advanced individual training for MOS 31C (Single Channel Radio Operator), orders assigned him to Fort Sam Houston, TX; he arrived at Fort Sam Houston on 5 March 1991. d. On 11 June 1991, the applicant's Fort Sam Houston unit reported him as AWOL; in a DA Form 4384 (Commander's Report of Inquiry/Unauthorized Absence), the commander indicated marital strife and indebtedness may have contributed to the applicant's unauthorized departure. Effective 11 July 1991, the unit dropped him from Army rolls. e. On 31 December 1991, the applicant surrendered himself to military authority at Fort Sam Houston; orders transferred him to the U.S. Army Personnel Control Facility (PCF) at Fort Sill, OK, effective that same date. f. On 7 January 1992, the applicant's PCF commander preferred court-martial charges against him for AWOL from 11 June until 31 December 1991 (203 days). Also on 7 January 1992, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge in Lieu of Trial by Court-Martial), AR 635-200. In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he also acknowledged he was guilty of the charge. He elected not to submit a statement in his own behalf. g. On 23 January 1992, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank to private/E-1. On 5 February 1992, the applicant was discharged accordingly; his DD Form 214 shows he completed 8 months and 1 day of his 4-year enlistment contract, with lost time from 19910611 through 19911231. He was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. h. On 2 August 1993, the applicant petitioned the ADRB, requesting an upgraded character of service. (1) He argued his discharge was inequitable because his ability to serve was severely hindered as a result of his mental illness. In addition, no psychological examination was performed prior to his separation. (2) On 8 April 1996, the ADRB denied the applicant's request, finding there was no proof the applicant had sought help for his behavioral health issues prior to going AWOL, and the evidence further indicated the applicant was fully capable of understanding the separation proceedings; the ADRB additionally noted the applicant waived his separation physical. i. On 8 October 2019, an Army Review Boards Agency (ARBA) psychologist provided a medical advisory opinion. (1) The ARBA psychologist reviewed the evidence submitted by the applicant and documents from the applicant's service record; no Department of Veterans Affairs (VA) records were evaluated because the applicant was not registered with VA. (2) The ARBA psychologist found sufficient evidence to opine that, while the applicant met medical retention standards at the time of his separation, he nonetheless had mitigating behavioral health conditions (i.e. major depressive disorder with psychotic features and bipolar disorder). j. On 16 October 2019, ARBA provided the applicant a copy of the advisory opinion for review, as well as the opportunity to submit a statement or additional evidence on his own behalf; the applicant submitted the following in response: (1) The medical advisory did not correctly show his first name. (2) He provided an additional behavioral health document: Condensed Health Services Encounter, dated 5 December 2018, which reflected a psychiatric hospitalization in 1991, two suicide attempts (respectively in 1994 and 2001), and the applicant's 32-year incarceration due to a sexual assault conviction. As of 2018, the applicant had two more years of his sentence to serve. 4. While there were other factors, the applicant essentially argues his severe behavioral health issues played a significant role causing his AWOL. a. During his active duty service, the applicant was AWOL for more than 30 days; the Manual for Courts-Martial at the time showed the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge among its punishments could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. An ARBA psychologist affirmed the applicant had mitigating behavioral health issues at the time of his separation from the Regular Army. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 5. With regard to his IET uncharacterized separation on 17 February 1989: a. The available evidence shows, after enlisting into the MTARNG, the applicant was called to active duty, successfully completed IET, and was awarded an MOS. b. Although, based on regulatory guidance in effect at the time, his DD Form 214 properly reflects an "uncharacterized" character of service, regulatory guidance has since changed. The current regulation states, unless otherwise directed by the separation authority, entry level soldiers will be given an honorable character of service when they have successfully completed IET/IADT and are awarded an MOS. The Board can, in the interest of equity, amend the applicant's IET service characterization to honorable. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board noted the facts presented above. The Board considered the Board’s psychologist review the evidence submitted by the applicant and documents from the applicant's service records finding that while the applicant met medical retention standards at the time of his separation, he had behavioral health conditions (i.e. major depressive disorder with psychotic features and bipolar disorder) that are considered mitigating in his reasons for separation. The Board found sufficient evidence of in-service mitigation to warrant clemency on the applicant’s character of discharge changing it to an honorable discharge. The Board also found that under current standards, the applicant’s uncharacterized discharge from IET should be corrected to show an honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that: a. The character of service as honorable on his DD Form 214 for the period of service ending 17 February 1989. b. The character of service as honorable on his DD Form 214 for the period of service ending 5 February 1992. 9/22/2020 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Except under specific circumstances, a separation was described as an entry level separation with service uncharacterized when processing was initiated while the Soldier was in entry level status. For Army National Guard (ARNG) and USAR Soldiers, entry level status began upon enlistment into the Army National Guard or U.S. Army Reserve and terminated after Soldiers had been ordered to IADT and served for one continuous period, 180 days following the start of training; Soldiers who participated in the alternative or split training program, and who had completed Phase I (i.e. basic training or basic combat training), remained in entry level status until 90 days after beginning Phase II. d. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 3. The Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart) showed the maximum punishment included a punitive discharge for violating Article 86 (AWOL), UCMJ. 4. AR 600-200, in effect at the time, prescribed policies and procedures for enlisted personnel management. Paragraph 6-11 stated Soldiers approved for an under other than honorable conditions discharge were required to be to the lowest enlisted grade. 5. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 to 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. 6. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, 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. 7. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system. It states a DD Form 214 will be prepared for RC Soldiers awarded an MOS even if active duty is less than 90 days. RC Soldiers completing active duty that results in the award of a military occupational specialty (MOS), even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of the Army National Guard of the United States (ARNGUS) Alternate Training Program or USAR Split Training Program). When a RC Soldier successfully completes initial active duty training the character of service is Honorable unless directed otherwise by the separation approval authority. //NOTHING FOLLOWS//