ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  8 November 2019

	DOCKET NUMBER:  AR20180015992


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions discharge (GD) to fully honorable.  

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)

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:

     a.  He served his country to the best of his ability.  Due to sleep deprivation, exhaustion, and fatigue, he had a number of mental illness conditions.  He experienced hallucinations, hearing voices, paranoia, and had been diagnosed with manic depressive behavior.  He does not believe he did anything wrong.  He worked 13 hour shifts during the night and also had no ability to sleep during the daylight hours which led to his conditions when he returned from leave.  He is a patriot who volunteered to served his country under any conditions would like his dignity restored.  He was treated at a mental hospital after leaving duty for a period of time and was released without any treatment plan or long term care.

     b.  He believes he was of sound mind and body when he entered the Army and was deprived of sleep for the entire time he was stationed in Germany.  He believes his discharge should be upgraded to honorable and he should be eligible for the medical care he deserves.  He is a good citizen who raised 6 children and has been married for 28 years to the same woman.  He had some difficulties for sure; however, they resulted from his service.

3.  The applicant accepted non-judicial punishment on 14 April 1982, for failing to go at the prescribed time to his place of duty on or about 17 March 1982 and                23 March 1982.

4.  A Discharge Summary from Greater Lynn Community Mental Health Center, dated 2 June 1982, shows the applicant was was admitted on 31 May 1982 and discharged on 2 June 1982.  The report states, in part, the applicant had a nine month history of manic depressive illness.  He was transferred to Union Hospital Mental Health Unit for the purpose of initiating lithium treatment and to get him started in the Day Treatment Program.

4.  On 1 September 1982, the applicant was charged with being absent without authority from on or about 23 May 1982 until on or about 30 August 1982.

5.  On 3 September 1982, after consulting with counsel, the applicant he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him.  He admitted he was guilty of the charges against him.  He further acknowledged, as a the result of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life.  He elected to submit a statement on his behalf.

6.  In his statement he states, in part:

     a.  He went to Fort Devens seeking psychiatric care.  He was diagnosed as having manic-depression and was hospitalized against his will for one night.  He was then confined at a Department of Veteran Affairs hospital and medicated against his will.  He was then sent to a civilian hospital for over a week for observation. He was released and told to report to Fort Devens where he saw Dr. H.  He was extremely upset because he received little to no help from the Army facilities.  He turned to a licensed psychiatrist who hospitalized and diagnosed him as having acute manic-depression and needed help.  He was prescribed lithium and was transferred to the psychiatric ward of Lynn Union Hospital.  He was kept there for several weeks.  

     b.  During that time he was charged with absent without leave (AWOL).  Doctors would not allow him to return to military control due to his potential instability and having to have his blood level tested.  He was informed by a lawyer who was a Reserve officer that Fort Devens was aware of the applicant’s whereabouts and as soon as he receive all of his medical reports the applicant would go back to Fort Devens and face a medical review board and be given the proper medical care and possibly be medically discharged.  However, when he returned to Fort Devens, he was sent to Fort Dix, NJ and processed as if nothing had happened.  He talked to counsel at Fort Dix, NJ and was advised to sign a chapter 10 discharged and attempt to upgrade his discharge in the future.  He feels he was mistreated by medical personnel and an other than honorable discharge would be a cruel injustice.  He requested his discharge be reviewed and possibly upgraded.        

7.  On 21 September 1982, the appropriate authority approved the applicant’s request and directed a General Discharge Certificate.
 
8.  On 6 October 1982, the applicant was discharged in accordance with the appropriate authority’s decision.  His DD Form 214 shows he completed 1 year,        4 months, and 22 days of net active service this period.  

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  On 4 October 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, there is sufficient documentation to support the existence of a behavioral health condition at the time of discharge.  The available records indicate the applicant did not meet medical retention standards.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

11.  On 11 October 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.  In reaching its determination, the Board can consider the applicant's petition, his statement and service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

After reviewing the application and all supporting evidence, to include the medical advisory, the Board found sufficient evidence to grant relief.  The Board agreed with the medical advisory opinion that the applicant’s behavioral health condition was a mitigating factor for the misconduct that resulted in his discharge.  Therefore, the Board found sufficient evidence to change the applicant’s characterization to Honorable.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s discharge characterization on his DD Form 214, dated “82-10-06” to “Honorable.”

	 
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.  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 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.  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. 

4.  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)	 AR20180015992
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