ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20180016982 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 his discharge should be upgraded to honorable due to mental health/post-traumatic stress disorder (PTSD) issues. It is the right thing to do after all these years. 3. The applicant enlisted in the Regular Army on 14 October 1980. 4. A DD Form 458 (Charge Sheet), dated 14 October 1981, shows he was charged with absenting himself from his organization without authority on or about 7 January 1981 and remaining absent until on or about 13 October 1981. 5. On 16 October 1981, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf and waived a separation medical examination. 6. A DA Form 3822-R (Report of Mental Status Evaluation) shows he underwent a mental status evaluation on the date of the form. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 7. On 16 October 1981, his chain of command recommended approval of his request for discharge and recommended the issuance of a UOTHC Discharge Certificate. The applicant’s conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his record, punishment could not be expected to have a rehabilitative effect. There did not appear to be any reasonable ground to believe the applicant was mentally defective, deranged, or abnormal at the time of his misconduct. 8. On 2 November 1981, the general court-martial convening authority approved the request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He directed the applicant’s UOTHC discharge and reduction to the lowest enlisted rank/grade. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 4 December 1981 under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial. He was credited with 4 months and 15 days of net active service this period, with lost time from 7 January 1981 through 12 October 1981 and his service was characterized as UOTHC. 10. There is no evidence of record the applicant was diagnosed with or treated for a mental health condition during his period of service. 11. On 1 October 2019, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion, stating there is no documentation to support the existence of a behavioral health condition at the time of the applicant’s discharge. The available records indicate the applicant met medical retention standards and there is no behavioral health condition to consider in mitigation of his misconduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 4 October 2019 and given an opportunity to submit comments, but he did not respond. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. 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. 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. 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, 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. 3. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180016982 4 1