ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20180014479 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge 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 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. He was discharged due to poor decisions and actions which stemmed directly from post-traumatic stress disorder (PTSD) and substance abuse issues. He has continued to struggle with both issues since separation and he is currently incarcerated due to driving while intoxicated offenses. He is receiving help and treatment. He is requesting this review at the recommendation of sergeant JD of the Wisconsin Department of Corrections, who informed him of the options and benefits programs which are now available for incarcerated veterans. b. At the time of his separation from the Army, he was also told that his discharge would be upgraded to “general” or “general, under honorable conditions”, so he would be eligible for his benefits, however, it appears that never happened. He is requesting an upgrade to his discharge characterization so he will be able to get these issues addressed upon release from the correctional institution and to use these programs to prevent this from recurring. 3. On 22 August 1991, he enlisted in the Regular Army for a period of 3 years. 4. On 16 November 1992, in a sworn statement, the applicant admitted to writing checks from another Soldiers account, and making the checks payable to him for cash. 5. On 17 November 1992, an initial Criminal Investigation Division Report shows a preliminary investigation disclosed the applicant stole an undetermined number of “starter checks” issued to another Soldier. He subsequently forged the Soldier’s signature and negotiated an undetermined number of these checks at local Army and Air Force Exchange Service facilities. When he was interviewed, under rights advisement, the applicant admitted to stealing the checks and to having negotiated several checks worth in excess of $200.00. 6. On 24 February 1993, in a sworn statement, the applicant admitted to stealing other Soldiers’ property from their barracks rooms and laundry room. 7. On 18 March 1993, a Military Police Report revealed that during the period of 1 September 1992 to 19 February 1993, the applicant had removed various items owned by other Soldiers from various locations in Germany, without the consent of the owners. He was processed and subsequently released to his unit. 8. The applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniformed Code of Military Justice on: * 21 April 1993, for falsely writing checks that were not his and obtaining $200.00, and forging another Soldiers signature * 23 July 1993, breaking restriction and stealing the personal property of other Soldiers valued at more than $100.00 9. On 10 August 1993, a medical examination and mental status evaluation medically cleared the applicant for administrative separation proceedings deemed appropriate by his chain of command. 10. On 12 August 1993, trial counsel reviewed the proposed separation action against the applicant and indicated there was sufficient documentation to process the separation action. 11. On 16 August 1993, the applicant was notified by his commander of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of serious offenses. The reasons for the commander’s proposed separation action were the applicant being charged with larceny of government and private property, and receiving NJP on 2 occasions for forging a signature and uttering checks not his own, and breaking restriction. The applicant was advised of his rights and consulted with counsel. a. He was advised by counsel of the basis for the contemplated separation action, its effects, and the rights available to him. He elected not to submit statements in his own behalf. b. He submitted a conditional waiver voluntarily waiving consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general under honorable conditions discharge. He also requested a personal appearance before an administrative separation board. c. His chain of command recommended that an administrative separation board be convened and that he receive an UOTHC discharge. The conditional waiver was reviewed and disapproved by his chain of command. d. The Board of Officers and enlisted members found the applicant was undesirable for further retention in the military service and recommended he be discharged from the service because of commission of serious offenses with an UOTHC Discharge Certificate. e. The separation authority approved his discharge with an UOTHC characterization of service. 12. On 15 November 1993, the applicant was discharged under the provisions of chapter 14, AR 635-200, based on “misconduct”. He completed 2 years, 2 months, and 25 days of net active service. The DD Form 214 he was issued shows an UOTHC character of service and no personal decorations. 13. On 12 December 2018, the Army Review Boards Agency (ARBA) requested the applicant provide a copy of the medical documents that supported his issue of PTSD. He responded and stated in pertinent part, he has had several counselors and therapists who associated his substance abuse and subsequent actions to PTSD, but he has never been clinically diagnosed by a psychiatrist or psychologist. Therefore, he has no paperwork to submit, nor would he be able to submit any notes or documents due to his current incarceration. 14. On 18 June 2019, the ARBA psychologist provided an advisory opinion which was provided to the Board, it stated in pertinent part: a. The applicant's personal statement to the Board acknowledges he has never been diagnosed with PTSD. A review of the hardcopy military medical records showed the applicant was evaluated by a psychiatrist on 10 August 1993. He had no behavioral health diagnoses and met retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness). The records provided no additional information regarding any behavioral health issues or diagnoses. b. The applicant’s medical records do not support the existence of PTSD at the time of discharge. The applicant's military medical records indicate that with respect to behavioral health diagnoses, the applicant did meet medical retention standards IAW AR 40-501. The applicant does not have a diagnosis of PTSD. In addition, PTSD would not be considered a mitigating factor in the misconduct that resulted in the applicant's discharge. 15. On 25 June 2019, the applicant was provided a copy of the medical advisory opinion to allow comments or rebuttal. We did not receive a response. 16. 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. This regulation states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 18. There is not now nor has there ever been any provision in law or regulation that allowed for an automatic upgrade of any less than honorable discharge based solely on a period of lapsed time post-service. In reaching its determination, the Board should consider the applicant's petition, service record, and statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 response to a request for medical documents, the frequency and nature of his misconduct and the reason for his separation. The Board also considered and concurred with the conclusions of the medical advising official. The Board found insufficient mitigation in-service for the misconduct and 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 at separation was not in error or unjust. The Board concurs with the correction found in the Administrative Note(s) below. 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: With the exception of the correction stated in the Administrative Note(s) that follow, 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. 10/11/2019 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. ADMINISTRATIVE NOTE(S): The applicant’s service record shows he entered active duty on 21 August 1991 and completed 2 years, 2 months, and 25 days of net active service. Items 12a (date entered active duty this period) and 12c (net active service this period) of his DD Form 214 for the period ending 15 November 1993 should be corrected. 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. 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 ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. 4. 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. 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, 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. 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.