IN THE CASE OF: BOARD DATE: 27 August 2019 DOCKET NUMBER: AR20180014792 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 he was given the option to return to his unit or take an early out option; he chose the early out option. He was never told his discharge would be other than honorable discharge. Had he known what his discharge was going to be, he would have reconsidered his decision to get out. a. About a year after being stationed at his first duty assignment in Germany, he was deployed to the Gulf War. During that time he was the driver for the Command Sergeant Major (CSM). He’d seen some things that weren’t the prettiest and still haunt him today. After he redeployed he noticed he was having some issues with sleeping and having some other sever mood swings in which he thought it was fatigue. b. His next assignment was Fort Carson, Colorado where he tried to get acquainted with his new surroundings but things didn’t seem to make sense to him. He felt like he didn’t belong. The people he went to get help from didn’t give him the time or day with the issues he was having. He was told there was nothing physically wrong with him and they couldn’t find anything. He was having a hard time sleeping, eating, quick anger issues, mood swings, and trying to stay motivated on the job so one morning he woke up and decided he needed to take a break and just left. He doesn’t know what possessed him to do it but he felt like he couldn’t take it any longer. This was the same time his unit was supposed to go for a field training exercise for about a month. He felt that if he went to the field for a month it would have drove him crazy so he went AWOL. He went back home to his family in Illinois. His uncle a Vietnam Veteran gave him some insight as to maybe why he was feeling the way he was so he went to his doctor several times with no results. After being home for a few months he processed back to Fort Campbell, KY. c. At Fort Campbell, KY he was asked if he wanted to go back to his unit or take an early out. When he asked what the difference was he was told that since the military was doing a drop in troops he was close to his exit date and he could take the early out and not lose his Veteran benefits or college benefits so he decided to take the early out. When he was processed out he did not receive any paperwork. d. Since he’s been processed out of the military in 1993, he’s had some issues dealing with the problems he’s discussed and has since found help with his issues. He has now learned that he suffers from PTSD. He’s gone through therapy to learn how to deal with certain issues and how to control the problems he has. 3. On 8 August 1989, the applicant entered the Regular Army for three years at the age of 19. After completing basic combat training (BCT) and advanced individual training (AIT) earning military occupational skill (MOS) 13E, Cannon Fire Detection Specialist, he was assigned to A, Battery, 2-1 Field Artillery, Germany. Within the year he was deployed to Southwest Asia for approximately one year. 4. On 23 March 1992, the applicant’s duty status change from present for duty to absent without leave (AWOL) subsequently being dropped from the rolls on 22 April 1992. 5. On 16 August 1992, he was apprehended by civilian authorities and assigned to the Joined Special Processing Company on 18 August 1992, where he signed an admission of AWOL, declaring he had been advised and understood his available rights by counsel. 6. On 19 August 1992, the applicant signed a medical examination for separation statement of option indicating he did not desire a separation medical examination. 7. His record is void of a separation packet or other evidence that shows the specific circumstances surrounding his separation, however, on 18 September 1992, discharge orders were published with an effective date of discharge for the applicant as 9 September 1992, under other than honorable conditions, in accordance with Army Regulation 635-200, chapter 10. 8. The applicant’s record is void of a charge sheet or separation packet. His DD Form 214 shows: * Separation Date: 5 October 1992 * Net Active Service: 2 years, 9 months, 5 days * Separation Authority: AR 635-200, Chapter 10 * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions (UOTHC) * Foreign Service: 1 year, 6 months, 24 days 9. On 2 August 2019, the Army Review Boards Agency (ARBA) Clinical Psychologist submitted an advisory which was provided to the Board. The evaluator reviewed available administrative and medical records and provides a thorough overview of his military service performance and disciplinary actions, medical records (military and Veterans Affairs), it states, in pertinent part based on a thorough review of available medical records, there is insufficient evidence to determine if a behavioral health condition contributed to the misconduct that led to the applicant's separation. 10. His record shows his first duty assignment after initial training being Germany. While there he deployed in support of Defense of Saudi Arabia as well as Liberation and Defense of Kuwait receiving commendations and awards. Sometime after deployment and a new assignment to Fort Carson he went AWOL for 146 days. The highest rank he held was Specialist. His DD Form 214 shows he was unavailable for signature. 11. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 12. 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 mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 13. Army Regulation 635-200, Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 14. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published liberal consideration, equity, injustice, or clemency guidance. 15. The ARBA clinical psychologist, when asked to determine if there is a nexus between a behavioral health condition and the misconduct resulting in the applicant’s discharge stated based on a thorough review of available medical records, there is insufficient evidence to determine if a behavioral health condition contributed to the misconduct that led to the applicant’s separation. 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 service record, his deployment, the nature of his misconduct, the conclusions of the advising official and whether liberal consideration or clemency applied. The Board concurred with the advising official and found that there was insufficient evidence of a condition to mitigate his misconduct and determined that the character of service he received at discharge 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 :X :X :X 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 635-200 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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. 3. 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. 4. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 5. 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. ABCMR Record of Proceedings (cont) AR20180014792 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 6