ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180016416 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Medical University of South Carolina * Personal statement * 6 letters of support 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: a. He served in both Granada and the Gulf War. He has been diagnosed with post- traumatic stress disorder (PTSD). During the Gulf War, as the rocket/mortar attacks got closer and closer, he felt less and less safe with the 3 burst rounds of the M16; therefore, he had his M16 modified to automatic. He feels his PTSD caused the lapse of judgement that caused him to have his weapon modified. b. After being discharged he was first engaged with the Florida Department of Juvenile Justice where he mentored and encouraged young adults into establishing exceptional choices. In his spare time he coaches youth football. Whenever he comes into contact with a troubled youth, he immediately gives advice. He has worked for Florida and South Carolina Departments of corrections. He is a member of Russell Lodge 198 of Free and Accepted Masons and in the process of joining the Veterans of Foreign Wars. He dreams of living the veteran lifestyle. His country is his joy and he takes pride in it. The U.S. Army has made great strides in his life for him, his family, and country. His errors were not the army’s fault and today is deeply humbled. 3. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows in: a. item 5 (Overseas Service): * service in Korea from 14 April 1986 to 17 April 1987 * service in Germany from 26 August 1990 to 25 August 1993 * service in Saudi Arabia from 27 December 1990 through 3 May 1991 b. item 9 (Awards, Decorations and Campaigns) the following: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal (2nd Award) * Noncommission Officer Professional Development Ribbon * Armed Forces Expeditionary Medal * Driver and Mechanics Badge * Army Commendation Medal * Parachutist Badge * National Defense Service Medal * Southwest Asia Service Medal with two bronze service stars c. item 27 (Remarks), duty in imminent danger pay area (Grenada) from 24 October 1983 to 2 November 1983. 4. On 27 June 1991, the applicant was charged: * two specifications of maltreatment on diverse occasions between 1 January 1991 and 13 March 1991 * one specification of disposing of military property on or between 1 February and 12 February 1991 * one specification of suffering military property to be damaged on or between 1 February and 12 February 1991 * one specification of wrongfully soliciting another Soldier to steal military property on two separate occasions on or between 3 March 1991 and 14 March 1991 * one specification of wrongfully communicating a threat on or between 1 December 1990 and 31 December 1990 5. On 12 August 1991, after consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged: * being guilty of at least one of the offenses with which he was charged * making the request of his own free will * he was advised he may be furnished an UOTHC Discharge * being advised he could submit statements in his own behalf; he indicated he would not submit a statement * he would be deprived of many or all Army benefits * he may be ineligible for many or all veteran's benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State laws 6. On 20 August 1991, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UOTHC Discharge Certificate and reduction to the lowest enlisted grade. 7. On 6 September 1991, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). His service was characterized as UOTHC. He completed 9 years, 2 months, and 28 days of net active service during the period. His DD Form 214 shows the Army Service Ribbon and the Southwest Asia Service Medal with two bronze service stars. The issued DD Form 214 states in item 18 (Remarks) that a DD Form 215 (Correction to DD Form 214) will be issued to provide missing information or to correct any information; however, the DD Form 215 is not available for review. 8. 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). 9. On 30 March 2001, the Army Discharge Review Board denied his request for an upgrade of his discharge. 10. On 12 June 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, based on the available documentation, there is no evidence to support the applicant's contention that that he was suffering from undiagnosed PTSD at the time of his misconduct. While PTSD symptoms can be related to problems with authority, it is not associated with theft, mistreatment of subordinates, or modification of military weapons. There is no evidence to support PTSD as a mitigating factor in the events that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 21 June 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 the FSM's service record, in light of the published Department of Defense guidance on liberal consideration, equity, injustice, or clemency. 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 record of service, his statement regarding PTSD, the frequency and nature of his misconduct, the reason for his discharge, the conclusions of the advising official and whether to apply liberal consideration or clemency. The Board found no evidence of in- service mitigating factors and agreed with the advising official’s conclusion that there was not evidence indicating PTSD in service and, if undiagnosed, it would not mitigate the misconduct that led to his separation. The Board found the applicant provided no evidence of post-service achievements of letters of reference in support of a clemency determination. The Board determined, by a preponderance of evidence, that that character of service he received upon separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 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: With the exceptions of the corrections stated in the Administrative Note(s) below, 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. X CHAIRPERSON 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): There is sufficient evidence in the records to determine that the following administrative corrections are warranted to not deny the applicant benefits he may be entitled to for his periods of honorable service. Amend item 18 (remarks) of his DD form 214 for the period of service ending 6 September 1991 to show: * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 829609 UNTIL 870727 In the absence of a DD Form 215, add the following to item 13 (Decorations, Medals, Badges and Citations) of his DD Form 214 for the period of service ending 6 September 1991: * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar * Overseas Service Ribbon * Army Good Conduct Medal (2nd Award) * Noncommission Officer Professional Development Ribbon * Armed Forces Expeditionary Medal * Driver and Mechanics Badge * Army Commendation Medal * Parachutist Badge * National Defense Service Medal 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment 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 had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was 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.