ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180016959 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharged be upgraded 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) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 214 (Report of Separation from Active Duty) * Medical Records 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 he tried to get help for his mental health issues; however, he was not taken seriously. If he had received help his mental health issues maybe things would have changed. He should have been issued a medical discharge. As a child he was extremely abused. He enlisted in the Army to get away from the abuse. He is still in therapy for mental issues. 3. The applicant was inducted into the Army 17 September 1971 and was honorably released for immediate reenlistment on 22 June 1972. 4. The applicant accepted non-judicial punishment on 17 April 1974, for failing to go to his appointed place of duty at the prescribed time on 11 March and 15 March 1974. 5. Special Court-Martial Order (SCMO) Number 19, found the applicant guilty of being absent without authority from on or about 31 May 1973 to on or about 13 June 1973. His sentence consisted of restriction to the limits of the company area for 60 days, forfeiture of $50.00 per month for 6 months, and reduction to the grade of private first class. 6. SCMO Number 48, dated 4 September 1974, shows the applicant was found guilty of two specifications of theft. His sentence consisted of confinement at hard labor for 120 days, forfeiture of $200.00 per month for 4 months, reduction to the lowest enlisted grade, and a bad conduct discharged (BCD). 7. On 28 July 1975, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11-2. Although he was sentenced to a BCD, his DD Form 214 shows his charge of service as UOTHC. He completed 2 years, 9 months, and 19 days of net active service this period. He was awarded or authorized the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanics Badge with Mechanical Component Bar. 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 20 May 2019, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) medical advisor, who states, the applicant’s military records do not support the diagnosis of PTSD or other boardable Behavioral Health condition at the time of discharge; a behavioral health condition, Anxiety Reaction, was present at the time of the misconduct; however, this behavioral health condition was not mitigating for the applicant’s misconduct. The applicant’s military records indicate that the applicant did meet medical retention standards and did not warrant separation through medical channels. The applicant’s medical conditions were duly considered during separation processing. Referral of the applicant’s record to the disability evaluation system (DES) for consideration of medical disability/retirement is not indicated. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 28 May 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 11. Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge. Chapter 11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed. 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. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 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 his service record, in light of the published Department of Defense 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 consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the conclusions of the advisory opinion and whether to apply clemency. The Board found insufficient mitigation in-service for his misconduct and concurred with the advising official; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence, that the character of service the applicant received upon separation was not in error or unjust. 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: 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): Not Applicable 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, then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge. Chapter 11 states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed. 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 (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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 5. 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. 6. 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. 7. 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.