ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 14 April 2020 DOCKET NUMBER: AR20180016528 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 11 October 2018 * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty), for the period ending 16 November 1977 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 made a big mistake in requesting to be discharged. He was falsely accused of a crime, followed by being both verbally and physically abused due to the accusation. 3. The applicant enlisted in the Regular Army on 9 August 1976. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 12 April 1977, for dereliction of duty and failure to obey a lawful order from a superior noncommissioned officer (NCO) * on 15 May 1977, for failure to obey a lawful order from a superior NCO on two occasions 5. The applicant was afforded a mental status evaluation on 12 October 1977, which found no abnormalities and cleared him to participate in any administrative board proceedings. 6. The applicant's unit commander notified the applicant on 24 October 1977 that he was initiating actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5 (Expeditious Discharge Program (EDP)). The commander recommended the applicant receive a general discharge. 7. The applicant acknowledged the proposed separation notification and voluntarily consented to the separation. He acknowledged he had been advised of and understood his rights, that if his service was characterized as general, under honorable conditions, he could expect to experience substantial prejudice in civilian life, that there is no automatic review or upgrading of his discharge, and he could not apply for reenlistment for two years. He elected not to provide a statement in his own behalf. 8. The applicant's unit commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, Chapter 5. The separation authority approved the applicant's discharge on 26 October 1977, under the provisions of Army Regulation 635-200, paragraph 5-37, and directed the applicant receive a general discharge. 9. The applicant was discharged on 16 November 1977. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-37. His DD Form 214 further shows he was discharged in the rank/grade of private/E-2 and his service was characterized as under honorable conditions. 10. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 11. The applicant has not identified what accusation led him to his alleged abuse nor has he provided any evidence of the development of mental health issues related to the alleged abuse. 12. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. He has no records in iPERMS. The Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the time of the applicant’s service. A review of VA’s Joint Legacy Viewer (JLV) indicates he has been evaluated and treated in the VA system. On 8 May 1998, he was admitted to the psychiatric ward due to suicidal ideation and auditory hallucinations. He reported depression due to his girlfriend leaving him last month and ongoing fights with his wife and daughter. The applicant was diagnosed with Major Depressive Disorder (MDD) with psychotic features, marijuana, cocaine and PCP abuse, and Personality Disorder, NOS. He was subsequently transferred to a long term therapy facility (Jul-Oct 1998) and discharged on 5 Nov 1998 with a diagnosis of MDD, Polysubstance abuse, and Dysthymic Personality Disorder. On 3 Nov 2003, he was diagnosed with Schizoaffective Disorder and seen again for the same diagnosis on 1 Apr 2004. There is a gap in treatment at the VA from 2006 to 2013. On 7 Oct 2013, a social worker documents the applicant is 100% service connected for PTSD. On 18 Jun 2014, he is evaluated by a psychiatrist. The applicant denies any combat exposure, trauma, or military sexual trauma. He reported being accused of stealing a camera which he claims he didn’t do but it got him discharged anyway. He reported two post service head traumas (falling off cable company ladder and car accident). The psychiatrist diagnosed him with Depression, NOS. On 21 Apr 2016, 8 Mar & 31 May 2017, he was evaluated and treated for Unspecified Depressive Disorder. In Aug 2018, he was diagnosed with PTSD. The applicant reported the trauma as the verbal and physical abuse he received from soldiers after he was accused of a crime he didn’t commit. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. The applicant was evaluated prior to his discharge and did met medical retention standards. The applicant’s PTSD is not a mitigating factor for the misconduct that led to his discharge because it occurred after the misconduct. The applicant stated the verbal and physical abuse occurred after he was charged with a crime and thus cannot be mitigating for misconduct that preceded the behavioral health diagnosis. 13. The Board may consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding the applicant’s PTSD was not a mitigating factor for the misconduct that led to his discharge because it occurred after the misconduct. The applicant provided no evidence post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 5-37, as then in effect, provided for separation under the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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. //NOTHING FOLLOWS//