ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  25 July 2019 DOCKET NUMBER:  AR20180016873 


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

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)

.Personal Statement

.Psychiatric Admission Summary (page 2)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.When he was 18 years old he attended Wayne State University in DetroitMichigan for one semester and wasn't satisfied with what he was doing.  He decided he wanted to try to become a United States Air Force fighter pilot.  He went to the recruiter's office but the Air Force recruiter was out to lunch.  An Army recruiter asked him what he wanted to do and said he had something better than flying.  The recruiter showed him a video of paratroopers.  He was fascinated and exhilarated. The recruiter sent him to downtown Detroit where he took the Armed Services Vocational Aptitude Battery and he scored very high on all the tests. The recruiter put a book in front of him and said he qualified for any job the U.S. Army had to offer.  He was told he also qualified for non-contributory veteran assistance program, a housing loan, medical services and possibly other benefits.  He immediately requested to be assigned to Special Forces (SF); however, he was told it was difficult to get into SF straight off the street and it was recommend that he go into the 82nd Airborne Division for eighteen months or so and then transfer to SF.  He was a lifeguard when the 18 months came and went.  Someone in SF encouraged him to go to SF procurement and request to get 
into SF.  SF said they could use him and requested a release from the 82nd Airborne Division; however, it was determined his enlistment bonus locked him into the 82nd Airborne division for 4 years.  This was not what he was told by the recruiter. 

b.The procurement officer said he had three choices:  finish the four years with the82nd and reenlist for SF, ask the 82nd to give him on the job training while in his unit, or get out of the service.  He got extremely upset and thought he was dishonored by the U.S. Army.  He elected to get out of the service. Upon graduating infantry school, he was offered 5 years at West Point Military Academy in exchange for 5 years of service as a commissioned officer.  He could not see 10 years into his future and said he would rather be in the locker room with the enlisted ranks.  After a while he knew he was insane enjoying the dangerous and life threatening training missions.  Artillery from cannons twenty miles away were exploding within one mile, the concussion made his brain bounce in his scull.  He felt like he was walking on the moon. 

3.On 22 February 1983, the applicant was charged with being absent without authorityfrom on or about 10 January 1983 to on or about 17 February 1983.

4.On 23 February 1983, after consulting with counsel, he requested discharge for thegood of the service under the provisions of Army Regulation 635-200 (PersonnelSeparations – 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 hewould 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 Federaland State laws



5.On 20 April 1983, the appropriate authority approved the applicant's request fordischarge for the good of the service and directed the issuance of an UOTHC DischargeCertificate and reduction to the lowest enlisted grade.
6.On 29 April 1983, he was discharged under the provisions of chapter 10 of ArmyRegulation 635-200.  His service was characterized as UOTHC.  He completed 2 years,1 months, and 12 days of net active service during the period.  His DD Form 214 showsthe following awards or decorations:
.Sharpshooter Marksmanship Qualification Badge with rifle bar (M-16)

.Expert Marksmanship Badge with Grenade Bar and Dragon Gunner Bar

.Army Service Ribbon

.Parachutist Badge.


7.His record is void of documentation that shows he was treated for an injury or anillness that warranted his entry into the Physical Disability Evaluation System (PDES).Additionally, there is no indication he was issued a permanent physical profile orunderwent a medical evaluation board (MEB) or a physical evaluation board (PEB).
8.On 5 June 2019, the ABCMR obtained an advisory opinion from a Medical Advisorwith Army Review Boards Agency (ARBA), who states, in part, based on a thoroughreview of the available medical records, there is a lack of documentation to determine if amental disorder existed during the applicant’s period of service.  As such there is insufficientinformation to determine if a behavioral health condition contributed to the misconductleading to his separation.  A copy of the complete medical advisory was provided to theBoard for their review and consideration.

9.On 14 June 2019, the applicant was provided a copy of the advisory opinion forcomment or rebuttal.  He did not respond.

10.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  Chapter 10 provides that a member who has committed an offense oroffenses for which the authorized punishment includes a punitive discharge may submita request for discharge for the good of the service in lieu of trial by court-martial at anytime after the charges have been preferred.  A UOTHC discharge is normallyconsidered appropriate.

11.Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, orSeparation) establishes the Army Disability Evaluation System and sets forth policies,responsibilities, and procedures that apply in determining whether a Soldier is unfitbecause 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 tounfitness will be considered in arriving at the rated degree of incapacity warrantingretirement or separation for disability.  Paragraph 3-2 states disability compensation isnot an entitlement acquired by reason of service-incurred illness or injury; rather, it isprovided to Soldiers whose service is interrupted and who can no longer continue toreasonably perform because of a physical disability incurred or aggravated in militaryservice.

12.In reaching its determination, the Board can consider the applicant's petition, hisstatements, and his service record, in light of the published Department of Defenseguidance 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 for consideration of discharge upgrade requests to thecomplete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity.  The Board agreed with the review and 



conclusions in the medical advisory opinion stating that the available medical recordscontain insufficient documentation to determine if the applicant had a mental disorder during his time in service.  The Board also agreed that there is insufficient evidence to determine whether a behavioral health condition contributed to the misconduct leading to his separation.  The Board found insufficient in-service mitigation for his misconduct and 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 applicant’s discharge characterization was not in error or unjust.BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 






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 militaryrecords 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 enlistedpersonnel.

a.Chapter 10 provides that a member who has committed an offense or offensesfor 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 under other than honorable conditions discharge is normally considered appropriate. 

b.Paragraph 3-7a states that an honorable discharge is given when the quality ofthe 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 Armyunder 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 governs the evaluation of physical fitness of Soldiers whomay be unfit to perform their military duties because of physical disability.  Theunfitness 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 hisemployment on active duty.  The regulation essentially requires that the servicemember 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 andmust not have completed of more than 179 days of active duty on the currentenlistment by the date of separation.  The regulation provided that Soldiers may beseparated when they have demonstrated that they are not qualified for retention due tofailure to adapt socially or emotionally to military life; cannot meet minimum standardsprescribed for successful completion of training because of lack of aptitude, ability,motivation, or self- discipline; or have demonstrated character and behaviorcharacteristics not compatible with satisfactory continued service.

4.On 3 September 2014 the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations and mitigating factors when taking action on applications from formerservice members administratively discharged UOTHC and who have been diagnosedwith PTSD by a competent mental health professional representing a civilian healthcareprovider in order to determine if it would be appropriate to upgrade the characterizationof 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. 
 
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