ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20180014981 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions (UOTHC) and personal appearance before the Board. 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 (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 he believes his discharge should be upgraded because he was ill. 3. The applicant enlisted in the Regular Army on 25 February 1977. 4. A DD Form 458 (Charge Sheet), dated 17 January 1978, shows he was charged with the following: * without authority, going from his appointed place of duty at the dining facility on 18 December 1977 * without authority, failing to go at the time prescribed to his appointed place of duty at the dining facility on 2 January 1978 * without authority, failing to go at the time prescribed to his appointed place of duty at the orderly room on 4 January 1978 * willfully disobeying a lawful order from his superior noncommissioned officer to report to the orderly room on 3 January 1978 5. A DD Form 458, dated 15 March 1978, shows he was charged with absenting himself from his unit without authority on 21 February 1978 and remaining absent until 9 March 1978. 6. Headquarters, 24th Infantry Division Artillery Special Court-Martial Order Number 5, dated 24 April 1978, shows he was arraigned and tried before a special court- martial pursuant to Court-Martial Convening Order Number 12, dated 16 March 1978, where he was charged with the following: * without authority, going from his appointed place of duty at the dining facility on 18 December 1977 * without authority, failing to go at the time prescribed to his appointed place of duty at the dining facility on 2 January 1978 * without authority, failing to go at the time prescribed to his appointed place of duty at the orderly room on 4 January 1978 * willfully disobeying a lawful order from his superior noncommissioned officer to report to the orderly room on 3 January 1978 * without authority, absenting himself from his unit on 21 February 1978 and remaining absent until 9 March 1978 7. On 10 April 1978, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. 8. On 13 April 1978, the applicant provided a personal statement, stating he believed a discharge from the Army was in his best interest. He conferred with counsel regarding the effects of the discharge and the type of certificate normally issued. He realized that he may very well receive a UOTHC discharge if his request were approved, but still believed the discharge to be in his benefit and asked for its approval. 9. Between 10 April 1978 and 12 April 1978, his immediate commander and intermediate commanders all recommended approval of his request for discharge and recommended the issuance of a UOTHC Discharge Certificate. His immediate commander stated the applicant’s conduct had been detrimental to the discipline and morale of the unit. In addition to the offenses listed, the applicant was also convicted of driving under the influence (DUI) and was confined in the Liberty County Jail for contempt of court for non-payment of his DUI fine. His productivity as a Soldier since December 1977 was near zero and his performance prior to that was marginal. 10. On 13 April 1978, the court-martial proceedings against the applicant were terminated by action of the Commanding General due to the applicant’s subsequent administrative discharge under the provisions of chapter 10, Army Regulation 635-200. 11. On 13 April 1978, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 12. A Standard Form 88 (Report of Medical Examination) shows he underwent a medical examination for the purpose of separation on 17 April 1978. He was found to be in good health and was qualified for separation. 13. His DD Form 214 shows he was discharged on 26 April 1978 for the good of the service under the provisions of chapter 10, Army Regulation 635-200, and his service was characterized as UOTHC. He completed 1 year, 1 month and 15 days of active service during this period with 17 days of lost time. 14. There is no evidence in his military records he was diagnosed with or treated for any physical or mental conditions during his period of service. 15. On 8 October 2019, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion, which states: a. The applicant’s entrance physical noted good health and was absent of medical or behavioral health conditions or treatment, as was his separation physical. b. The applicant’s original General Technical score on the Armed Services Vocational Aptitude Battery (ASVAB) when he entered the Army was 65 and records indicate a second ASVAB GT score of 113 at a later date, void of details surrounding the drastic improvement. This significant discrepancy could indicate a vacillating mental health condition that was symptomatic during the first testing; however, a conclusion cannot be reached due to the lack of information. c. A review of his Department of Veterans Affairs (VA) medical records indicate he was brought to the VA emergency room in 2002 after being assaulted by family, resulting in significant facial injuries. The provider noted a diagnosis of paranoid schizophrenia with medication. There are no further records until March 2018, when the VA indicated the applicant needed assistance with finances, access to healthcare, and housing. In October 1988 he was accepted into the VA Grant and Per Diem Program for housing, but was discharged 10 days later after leaving unexpectedly for an unknown reason. d. Based on a thorough review of all available records, there is insufficient documentation to conclude the applicant was experiencing schizophrenic symptoms while in the service, contributing to his misconduct. This does not negate his current diagnosis; however records are void of symptoms in-service and the VA records are absent elaboration of when symptoms began and whether they were service incurred or aggravated. 16. On 18 October 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 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 record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's claim to have been ill and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official that there is insufficient documentation to conclude the applicant was experiencing schizophrenic symptoms while in the service, contributing to his misconduct. The Board agreed the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 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. 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 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. 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, 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. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180014981 5 1