BOARD DATE: 7 April 2020 DOCKET NUMBER: AR20180014515 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge and correction of his DD Form 214 (Certificate of Release or Discharge) to show he completed his first term of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Honorable Discharge Certificate * Memorandum * Medical document * Document from the U.S. Army Court of Criminal Appeals FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 completed his first term of enlistment and reenlisted. His court martial case was dismissed as being impractical. There was no punishment for the false statement charge. He should have been medically discharged. 3. The applicant enlisted in the Regular Army on 8 October 1991, and reenlisted on 6 June 1995. 4. The applicant's court-martial order is not available for review; however, his record contains an Opinion of the Court from the U.S. Army Court of Criminal Appeals, dated 5 May 1999, which states a military judge convicted the applicant of rape and false swearing contrary to the applicant's pleas. The applicant alleged the judge erred when he admitted uncharged misconduct and hearsay evidence. The court agreed with the applicant. The court found the rape charge and specification were not satisfied. The court further found the error did not affect the findings of guilty related to the false swearing charge and specification. The court determined the convening authority may order a rehearing, if it is determined a rehearing is impractical, the convening authority could approve a sentence of no punishment. 5. On 21 September 1999, after consulting with counsel, the applicant voluntarily requested discharge in lieu of further court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged: a. He was making this request of his own free will and have not been subjected to any coercion whatsoever by any person. He had been advised of the implications that are attached to it. By submitting this request for discharge, he acknowledged he understood the elements of the offenses charged and was guilty of at least one of the charges against him or of lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. Moreover, he stated under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. b. Prior to completing the form, he had been afforded the opportunity to consult with appointed counsel for consultation or civilian counsel at no expense to the Government. He had consulted with counsel for consultation who had fully advised him of the nature of his rights under the Uniform Code of Military Justice, his post appellate rights afforded him under the Rules for Courts-Martial, and the maximum permissible punishment under the terms of his pre­trial agreement. Although he has furnished him legal advice, the decision was his own. c. He understood, if his request for discharge was accepted, he could be discharged under conditions other than honorable. He had been advised and understood the possible effects of an Under Other Than Honorable Conditions Discharge and that, as a result of the issuance of such discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood he could expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge. He further understood there was no automatic upgrading nor review by any Government agency of a less than honorable discharge he must apply to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) if he wanted a review of his discharge. He realized the act of consideration by either board does not imply his discharge would be upgraded. d. He had been advised he may submit any statements he desired in his own behalf, which would accompany his request for discharge. Statements in his own behalf were not submitted with his request. e. He acknowledged receipt of a copy of this request for discharge and of all enclosures submitted herewith. He did not desire a physical evaluation prior to separation. 6. On 19 October 1999, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. On 31 October 2000, the applicant was discharged accordingly. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of UOTHC. He completed 9 years and 23 days of net active service this period. He was awarded or authorized the Army Commendation Medal, Army Achievement Medal (4th Award), Army Superior Unit Award, National Defense Service Medal, Army Service Ribbon, Air Assault Badge, and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bar. 8. Item 18 (Remarks) of his DD Form 214 contains, in part, the entry "Member has not completed first full term of service.” 9. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A UOTHC discharge is normally considered appropriate. 11. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 12. Army Regulation 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 5-2f provides that a DD Form 214 is not prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 5-6r (4)(a) and (b) provides guidance related to conditional entries made in item 18. (1) For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. (2) For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. 13. The Army Review Board Agency (ARBA) Medical Advisor reviewed the applicant’s ABCMR application, applicant-provided medical documentation, the electronic VA medical record (JLV-Joint Legacy Viewer) and the applicant’s available military personnel records and made the following findings and recommendations: The electronic military medical record was not reviewed as it was not in use during applicant’s time in service. The hard copy military medical record was not provided for review. Applicant-provided medical documentation consists of a Medical Progress Note from Walter Reed Medical Center (WRAMC) dated 3 August 1994. This document indicates that the applicant was experiencing pain and soreness around a healed, abdominal knife wound he incurred in October 1993. The increase in pain occurred in the context of the applicant increasing his sit up count from 30-40 sit ups per day to 50- 55 sit ups per day. His physical examination was unremarkable and he was diagnosed with Adhesions in Subdermal Scar Tissue. Treatment consisted of a prescription for a muscle relaxant (Norgesic) and a temporary 14-day profile. Follow up was to be as needed. Review of the VA electronic medical record indicates that the applicant underwent a Compensation and Pension Examination for Post-Traumatic Stress Disorder (PTSD) on 25 June 2019. This examination determined that the applicant did not meet DSM-V criteria for any psychiatric condition to include PTSD. During this evaluation, the applicant reported his medical history as follows: he had surgery in 1993 as a result of being stabbed by his wife; he injured his knees and chipped his tooth when he stepped into a hole while running and he had a diagnosis of sleep apnea. After a comprehensive review of the available documentation, the ARBA Medical Advisor concludes that there is insufficient evidence of medical/psychiatric disability or condition which would support a change to the character or reason for discharge. There is no documentation in the applicant’s available records indicating that he suffered from an unfitting medical or psychiatric condition while on active duty as evidenced by the lack of: 1) a permanent physical profile for physical or psychological impairment; 2) a diagnosis of a medical or psychiatric condition that failed medical retention standards; 3) a diagnosis of a disabling medical or psychiatric condition that rendered the applicant unable to perform the duties required of his MOS or military grade; 4) a medical examination that warranted his entry into the disability evaluation system. Based upon these findings, a referral of the applicant’s case to IDES for consideration of medical disability is not warranted. BOARD DISCUSSION: 1. 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 considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. 2. The Board noted that the applicant had legal counsel, that he acknowledged by his initials that his rights were explained to him by legal counsel and that he understood them, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he acknowledged his understanding that by requesting discharge, that he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge, and that he could receive a discharge under other than honorable conditions. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 4. The Board did find some administrative errors in the applicant’s discharge DD Form 214 which should be corrected as noted in the Board Determination and Recommendation below. ? 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 showing in item 18 on his DD Form 214 for the period of service ending 31 October 2000: • deleting the entry "Member has not completed first full term of service;” • adding the entry "Member completed first full term of service;" • adding the entry "Immediate reenlistment this period 6 June 1995 to 31 October 2000;" • adding the entry "Continuous Honorable Active Service: 8 October 1991 through 5 June 1995." 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 changing his UOTHC character of service. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states 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. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 4. Army Regulation 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. c. Paragraph 5-2f provides that a DD Form 214 is not prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. d. Paragraph 5-6r (4)(a) and (b) provides guidance related to conditional entries made in item 18. (1) For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. (2) For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. 5. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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 the applicant's service. 6. 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 (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 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014515 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1