ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014818 APPLICANT REQUESTS: an upgrade of his under other honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2 letters of support * Medical documents 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 has medical conditions and is in need of treatment; however he can’t receive treatment unless his discharge is upgraded. He has depression, headaches, herniated discs in his upper spine, and pain in his feet. He has applied for his medical records and never got a response. He was chaptered out of the Army without treatment for depression and alcoholism. He had two driving under the influence (DUI) charges and a driving under suspension (DUS) charge due to his mental status which followed him after separation. He was incarcerated after receiving another DUI and DUS. 3. On 1 December 1987, the applicant received a Letter of Reprimand for driving while under the influence of alcohol. 4. The applicant accepted non-judicial punishment on 21 April 1988, for driving on post while his driving privileges were suspended. 5. The applicant complete separation packet is not available for review; however, his record contains a memorandum, dated 16 June 1988, which states in effect, the applicant was referred for court-martial. 6. The applicant’s records also contains a DD Form 214 which shows he was discharged on 16 August 1988, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, chapter 10, For the Good of the Service- In Lieu of Court-Martial. His service was characterized as UOTHC. He completed 3 years, 3 months, and 22 days of net active service this period. He was awarded or authorized the Army Service Ribbon, Army Achievement Medal, Overseas Service Ribbon, and the Sharpshooter Marksmanship Qualification Bade with Rifle Bar. 7. 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). 8. The applicant provides a letter of support from his wife which states, in part: a. Prior to the applicant’s enlistment into the military he was a very humble and respectful person. He had no criminal history, he was not a smoker, nor did he indulge in drinking activities. She can attest to these things due her long term involvement with him as a civilian and now his wife for almost 30 years. b. When he returned from his tour in Germany he was a different man. She noticed his bad habit of drinking. He began to indulge in drugs and also began to smoke. This was not the man she had dated. He became verbally and physically abusive. He lived life on edge. She was very concerned about his mental state as well. Often times he talked about his experience in the military and how it changed his views on life. There were times he would be out until the early hours of the next morning and come home intoxicated. It was during those time she had to watch and listen for signs of what seemed to be depression. His conversations about how things used to be and how it just doesn't seem worth it to live. She had to remind him of the family they created together and how their children needed a father in their lives to help guide them into adulthood. c. He at one time started giving his belongings away as if he was not going to be here to enjoy them himself. She questioned him and he would only say ... "maybe someone else can use them". They were very concerned about his mental state. He seemed to have reverted into his combat training and while using drugs became very angry and pulled a shotgun and fired 2 rounds at someone who caused his anger (no one was hurt). There was never a time she had to get the police involved because his episodes were short lived. Although she witnessed these episodes with him, sometimes he would cry and say he wish he would have never enlisted. He felt as if the government didn't offer him any help with his depression. She would encourage him to seek help as a veteran but he had no faith in the military helping him. d. While he was in Germany she received a call from him telling her how he was attempting to help one of his fellow soldiers who was drinking too heavily, he was hit in the face with a broken bottle which required a trip to the emergency room. The cut required stitches. During their conversation about this, she could tell the incident brought his self-esteem down and depression started to set in. He would often say he wished he had never joined. Several times he felt as if he was being accused unjustly while in Ft. Stewart Ga. His driving privileges were revoked due to his obsessive drinking. Life got worse for them as a family upon his discharge and return to civilian life. They had one car, two jobs and three children. He would have to get rides with friends or she had to be late to my job in order to get him to work on time. This made him feel less than a man, husband, and father. There was nowhere she could turn but to her church. Her husband had become very argumentative, aggressive, angry, and was turning into an alcoholic right before her eyes. e. Her husband complained often about his knees and feet hurting. Whenever she would make suggestions to him about getting some help, his response would be “who is going to help me?” “They gave me a dishonorable discharge, I don’t have good insurance to go to another doctor.” So she stopped trying to help. He has not made progress in terms of his feelings of depression. Remembering his time as a soldier changes his mood. His reasoning level was very low when it came to threats. He once told a relative he wanted to kill his own brother due to an argument they had. This is her personal account of the dysfunction the U.S. Army has placed on her husband’s life and their life as a family unit. 9. The applicant also provides a letter of support from Ms. B____ F_____, a former coworker, which states in part: a. She came to know the applicant in 1999 while working for a local company. After working in the same department for a number of years they established an effective and professional teamwork environment. Although the applicant was a great worker she began to notice he seemed to be disengaged with creating quality work. His attitude and mood swings seemed to change from day-to-day. He would make allegations about being the target of work harassment from different supervisors, managers, and other coworkers. Whenever a coworker would try to get him to see the logical side of things or explain that all employees have to do the same job tasks, he would have a difficult time or refuse to acknowledge acceptable reasoning. As time continued, his anger and temper seemed to get worse, to the point of becoming physical with another employee. b. She also recalls several occasions when the applicant would talk about wanting to hurt someone just because he received a verbal and/or written warning. He would become agitated and overwhelmed with their conversation because she would not agree with his irrational decisions. He would slam work tools against machines and even at time explode with tears of frustration. Following these types of behavioral encounters or for no apparent reason, he would go weeks without really communicating with anyone on the job, and he would state in his own words “Everyone is against me.” c. A few months ago she saw the applicant in a store, despite him stating he was doing very well, his appearance did not reflect his statement that he was in good health. He was unshaven, not well groomed, and he looked as if he had been wearing the same clothes for several days. She had no idea how his appearance had changed from the person she first met so many years ago. She has been attempting to stay in contact with him more. She has expressed her concern regarding his need to get help. He talks a lot about how his life is not going anywhere or how he just cannot seem to get anything to go his way. She is hopeful and grateful that he is finally reaching out to seek some medical and professional resources. 10. On 5 June 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, the applicant’s medical records do not support the existence of a behavioral health condition at the time of discharge. The applicant’s military medical records indicate that the applicant met medical retention standards. Based on the available documentation there is no indication of a diagnosis of depression or other behavioral health condition. In addition, depression would not be a mitigating factor for the misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 23 July 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 12. 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. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 14. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, 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 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, the reason for his separation and whether to apply clemency. The Board considered his statement about medical conditions and the conclusions of the advising official who determined that no mitigation for his misconduct was discovered. The Board considered the letters of support the applicant provided, but found no additional evidence of post-service achievements. Based on a preponderance of evidence, the Board determined that there was insufficient evidence to support an upgrade; the character of service the applicant received at separation 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 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. An under other than honorable conditions 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. 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. 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 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. 6. 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. ABCMR Record of Proceedings (cont) AR20180014818 6 1