ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20180016575 APPLICANT REQUESTS: The applicant requests reconsideration of his earlier request to upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Chain of command indorsement of applicant's separation request * DD Form 458 (Charge Sheet), first page * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 214 (Report of Separation from Active Duty) * Two DA Forms 1059 (Service School Academic Evaluation Report (AER)) * Department of Veterans Affairs (VA) Board of Veterans' Appeals decision with associated document FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010053 on 10 November 2009. 2. The applicant states he is requesting this upgrade based on his undiagnosed post- traumatic stress disorder (PTSD). At the time of his "violation," he was assigned to an armor battalion; he contends he was not under the command of Captain (CPT) and had no contact with any member of his unit. In addition, he asserts he had had no prior charges or violations. 3. The applicant provides the following documents: a. From his service record: an indorsement by his brigade commander recommending approval of the applicant's separation request; a DD Form 458, showing the charges preferred against the applicant by CPT ; two DD Forms 214; and two DA Forms 1059 (respectively showing the applicant's completion of Primary Leadership Development Course (PLDC) and Basic Noncommissioned Officer (NCO) Course (BNCOC). b. The applicant also submits a VA Board of Veterans' Appeals decision, dated 14 November 2013, that indicates the board was considering whether the applicant was entitled to the granting of two service-connected disabilities. The decision states the applicant served honorably from 28 September 1976 until 9 April 1982; the VA determined his service from 10 April 1982 until 6 June 1985 was dishonorable, for VA compensation purposes. It is not clear from the document whether the VA granted the applicant any service-connected disabilities. 4. The applicant's service records show: a. He enlisted into the Regular Army on 28 September 1976. Following completion of initial training, orders assigned him to Germany; he arrived on 23 January 1977. On 9 April 1979, he was honorably discharged so he could immediately reenlist. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 6 months, and 12 days of his 3-year enlistment contract; he was awarded or authorized two marksmanship qualification badges. b. He completed his tour in Germany and permanent change of station (PCS) orders reassigned him to Fort Benning, GA; he arrived on 11 February 1980. He successfully completed BNCOC while assigned at Fort Benning; his DA Form 1059 shows he achieved course standards, and received superior ratings for oral communication and leadership. c. He immediately reenlisted for 3 years on 10 April 1979. On 4 March 1981, he immediately reenlisted a second time; the term was for 6 years. While stationed in Germany, his chain of command published orders promoting him to staff sergeant (SSG)/E-6, effective 1 August 1982. PCS orders reassigned the applicant to Germany for a second tour; he arrived on 1 May 1981. d. On 19 April 1984, the applicant departed Germany for reassignment to Fort Stewart, GA; he arrived on or about 1 June 1984. e. On 10 January 1985, the applicant's Fort Stewart commander initiated a bar to reenlistment against the applicant based on non-payment of just debts; additionally, the commander stated the applicant had been arrested by civil authorities for simple assault. In the commander's view, the applicant's inability to prioritize his own off-duty affairs had made the applicant unreliable. (1) On 14 January 1985, the applicant's battalion commander recommended approval of the bar to reenlistment. In his indorsement, the battalion commander noted a review of the applicant's records revealed the applicant's previous command had erroneously promoted him to SSG; the promotion was invalid because the applicant did not have a high school diploma or its equivalency. As a result, the applicant's Fort Stewart leadership administratively reduced him to specialist five (SP5)/E-5. (2) The battalion commander further stated, on 30 December 1984, while at home, the applicant became involved in an altercation with his wife; this altercation resulted in the applicant being charged with assault. e. On 25 January 1985, the applicant's Fort Stewart unit reported him as absent without leave (AWOL). f. On 8 February 1985, the post commander approved the applicant's bar to reenlistment. g. On 24 February 1985, the applicant's Fort Stewart unit dropped him from Army rolls. On 9 April 1985, civil authority arrested the applicant and returned him to military control. The military police returned the applicant to his unit and the applicant's first sergeant (1SG) placed the applicant on restriction. On 10 April 1985, the applicant broke restriction and departed his unit in an AWOL status; effective 9 May 1985, his unit again dropped him from Army rolls. h. On 15 May 1985, civil authority arrested the applicant and returned him to military control; effective 16 May 1985, orders assigned him to his previous unit, commanded by CPT D W. W . i. On 16 May 1985, the applicant's Fort Stewart commander () preferred court- martial charges against him for two specifications of AWOL (25 January until 9 April 1985 (74 days) and 10 April until 15 May 1985 (35 days)); the charges also included one specification of breaking restriction. j. On 17 May 1985, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The applicant addressed his request through his company commander (i.e. ) to the separation authority. In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. k. On 29 May 1985, the separation authority approved the applicant's request and directed his under other than honorable conditions discharge; the separation authority further ordered the applicant's reduction in rank from SP5/E-5 to private/E-1. On 6 June 1985, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 11 months and 20 days of his 6-year reenlistment contract, with lost time from 25 January through 8 April 1985 and 10 April through 14 May 1985. His DD Form 214 also indicates he was awarded or authorized the following: * Army Service Ribbon * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (3rd Award) * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) l. On 30 May 2008, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade of his character of service. He argued they took his promotion to SSG away from him because of his race and the lack of a high school diploma. On 12 June 2008, the Army Review Boards Agency (ARBA) administratively closed the applicant's request because he had submitted it beyond the ADRB's 15-year statutory time limit. ARBA provided the applicant a DD Form 149 so he could apply to the ABCMR. m. On 21 May 2009, the applicant requested the ABCMR upgrade his under other than honorable conditions discharge. He contended his 1SG had unjustly made recommendations "because of involvement with my wife, to take away my car." He asserted, "No one ask (sic) why, mental impact." The Board denied the applicant's request after determining the applicant's contentions were unsupported by evidence, and his contentions were not sufficiently mitigating to warrant an upgraded character of service. n. On 6 September 2019, an ARBA psychologist provided an advisory opinion. (1) The applicant's electronic VA medical records showed the applicant was treated for kidney disease, pre-diabetes, and cardiac problems. In December 2018, a consult was placed for a behavioral health evaluation due to "depression following cardiac-related events." On 25 June 2019, the consult was discontinued after multiple attempts to schedule the applicant were unsuccessful. The VA records further indicated the applicant did not have a service-connected disability rating. (2) The applicant's military medical records do not support the existence of a behavioral health condition at the time of his discharge, and indicate he met medical retention standards. Based on the foregoing, the ARBA psychologist concluded there was no behavioral health condition for the Board to consider, with respect to mitigation of the conduct that led to the applicant's adverse discharge. o. On 9 September 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; he did not submit a response. 5. Although not required at the time, later versions of AR 635-5 (Separation Documents) mandated the inclusion of remarks when separating Soldiers received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 6. The applicant contends his adverse discharge was due to undiagnosed PTSD. a. Per the Manual for Courts-Martial that was in effect at the time, the maximum punishment for AWOL in excess of 30 days included a punitive discharge; Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and offered in-lieu of trial by court-martial. b. An ARBA psychologist provided a medical advisory and determined the applicant's medical records failed to show he had a behavioral health condition at the time of his discharge; the available evidence did not support mitigating the misconduct that led to the applicant's adverse discharge. 7. The applicant asserts he was not under CPT 's command at the time of his "violation," implying CPT had no authority to prefer court-martial charges against him. a. The Manual for Courts-Martial, in effect at the time, stated any person subject to the Uniform Code of Military Justice (UCMJ) could prefer court-martial charges. Commanders had the authority to forward any matters pertaining to an offense or charge to the appropriate court-martial convening authority for disposition; the fact that an accused Soldier was not a member of that commander's unit when the offense(s) were committed did not affect the commander's ability to forward preferred charges. b. The applicant's service records affirm, when CPT preferred court- martial charges against the applicant, the applicant was assigned to CPT 's unit. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on 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 liberal consideration or clemency of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the Bar to Reenlistment in his record, and the reason for his separation. The Board conclusions of the medical advising official and concurred that records fail to show a behavior health condition as mitigating for his misconduct. The Board found the applicant provided no evidence of 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 was not in error or unjust. The Board concurs with the correction 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 exception of the correction in the Administrative Note(s) that follow, 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. 10/17/2019 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): The current version of AR 635-5 (Separation Documents) mandates the inclusion of remarks when separating Soldiers received a less than honorable character of service. As a matter of equity, the following remark should be added to the applicant’s DD Form 214 for the period of service ending 6 June 1985 in item 18: "CONTINUOUS HONORABLE SERVICE FROM 18 APR 1979 TO 3 MAR 1981." REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 2. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed the maximum punishment for violations of Article 86 (AWOL for more than 30 days) included a bad conduct discharge. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (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 to 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 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 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. 7. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. Effective with Interim Change Number 1, dated 2 October 1989, separating Soldier who received a less than honorable character of service were required to have item 18 (Remarks) show the following comment: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." //NOTHING FOLLOWS//