ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  8 November 2019

	DOCKET NUMBER:  AR20180016706


APPLICANT REQUESTS:  an upgrade of his under other honorable conditions (UOTHC) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Revie of Discharge from the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 during his time in service, he suffered from neglect, depression, loss of family separation, and alcoholism.  His spouse committed suicide due to separation.

3.  The applicant accepted non-judicial punishment on the following occasions:

* 17 June 1981, for violating a lawful general order on or about 25 May 1981
* 18 September 1981, for being absent without authority from on or about                   3 September 1981 to on or about 14 September 1981
* 27 May 1982, for leaving post before being relieved on or about 14 May 1982
* 28 June 1982, for being absent without authority from on or about                            18 November 1982 to on or about 23 December 1982 

4.  A Report of Mental Status Evaluation, dated 31 January 1983, states the applicant was psychiatrically cleared for any administrative actions deemed appropriate by command.  The applicant met retentions standards and was mentally responsible.  

5.  On 1 February 1983, the applicant’s commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct.  The commander stated the reason for the proposed action was the applicant's willful commission of serious military offenses.  The applicant's retention would have an adverse impact on military discipline and morale.  The applicant was informed of his rights and acknowledged notification of receipt.  

6.  After being advised by consulting counsel of the basis for the contemplated action to separate him for misconduct.  The applicant requested consideration of his case by a board of officers and a personal appearance before a board of officers.  

7.  On 11 April 1983, a board of officers found the applicant undesirable for further retention in the military service because of pattern of misconduct.  Rehabilitation was not deemed possible.  The board recommended the applicant be discharged with issuance of an under other than honorable discharge certificate.

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 13 May 1983, the approval authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, due to misconduct.  He directed the issuance of a UOTHC discharge.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged accordingly due to misconduct – pattern of misconduct.  He completed 5 years, 8 months, and 23 days of net active service this period.  His service was characterized as UOTHC.  He was awarded or authorized the following:

* Army Good Conduct Medal (2nd Award) 
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Army Service Ribbon
* Overseas Service Ribbon (2)  

11.  On 3 October 2019, the ABCMR obtained an advisory opinion from a Clinical Psychologist with Army Review Boards Agency (ARBA), who states, in part, the applicant met medical retention standards.  There is insufficient documentation to support the existence of a behavioral health condition.  There is no behavioral health diagnosis to consider as a mitigating factor in the misconduct that led to the applicant's discharge.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

12.  On 11 October 2019, the applicant was provided a copy of the opinion and given the opportunity for comment or rebuttal.  He did not respond.
     
13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 

14.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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.  

15.  In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board found insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity.  The Board agreed with the medical advisory opinion that review of the medical records does not support a mitigating Behavioral Health Condition as the cause for the misconduct leading to his discharge from the Army.  The Board further found insufficient evidence of other mitigating factors for his misconduct.  The Board agreed that the applicant’s discharge characterization is appropriate.


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 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 sets forth the basic authority for the separation of enlisted personnel.

     a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions 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.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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.  

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.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20180016706
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