BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20190003040 APPLICANT REQUESTS: APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 9 November 2018 * DD Form 214 (Report of Separation from Active Duty), for the period ending 16 March 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 April 1982 * three third party letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he was depressed due to the death of his grandmother, which is what caused his actions. He needed counseling at the time, which he did not receive. These unusual circumstances triggered behavior that led to his other than honorable discharge. Prior to his grandmother's death, he had an exemplary military record. 3. The applicant enlisted in the Regular Army on 14 June 1977. Following the completion of his initial entry training, he was stationed in the Federal Republic of Germany. He was discharged on 15 March 1979, for the purpose of immediate reenlistment in the Regular Army. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 16 March 1979. 5. Permanent Orders 73-2, issued by the U.S. Regional Personnel Center, Nurnberg, awarded the applicant the Army Good Conduct Medal (1st Award) for his service from 14 June 1977 through 13 June 1980. 6. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions: * on 10 October 1980, for failing to go at the time prescribed to his appointed place of duty, to wit: physical training (PT) formation; battalion reveille formation; work call formation on two occasions, on or about 6 October 1980 * on an illegible date in January 1981, for willfully disobeying a lawful order from a superior noncommissioned officer, on or about 23 January 1981; for failing to go at the time prescribed to his appointed place of duty, to wit: guard duty, on or about 24 January 1981 7. A review of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) (PQR) indicates his unit reported him absent without leave (AWOL) on or about 16 November 1981. 8. The applicant was returned to military control or about 8 March 1982. He completed a Fort Dix Control Facility (FDCF) Form 691A (Personnel Control Facility (PCF) Interview Sheet), wherein he stated his reason for going AWOL from Erlangen, Germany, was because he was having a family problem. He was staying in Nurnberg, he had to be to work by 0600, and he would be late, which caused problems for him. He was tired of Germany. He tried to take action to solve his problems before going AWOL but he didn't know how. 9. Court-martial charges were preferred against the applicant on 18 March 1982, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit, without authority, from on or about 18 November 1981 through on or about 8 March 1982. 10. The applicant consulted with legal counsel on or about 22 March 1982. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 11. The applicant's immediate and intermediate commanders recommended approval of the applicant's request for separation under the provisions of Army Regulation 635-200, Chapter 10. His immediate commander opined that he had no motivation for continued service and would not respond to either counseling or rehabilitation. He further recommended that he be issued a UOTHC discharge. 12. The separation authority approved the applicant's request for discharge on 30 March 1982, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He further directed the applicant be discharged in the lowest enlisted grade possible and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 13. The applicant was discharged on 13 April 1982, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. The applicant provides three third party letters of support for consideration. The authors describe him as a hardworking, dependable man who is an upstanding member of his community. He is a steady worker and likes to help other people. One of the authors specifically states that the applicant went through some changes when his grandmother died but he is better now. 16. There is no additional documentation available in the application package or service record to support or refute the applicant’s claim that he suffered from depression or required counseling at the time of his discharge. 17. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration was applied, documentation is insufficient to determine whether or not the applicant had a psychiatric condition in-service mitigating the basis for separation. Accordingly, an upgrade is not recommended from a medical standpoint. b. Due to the period of service, the active duty electronic records are void. c. The applicant is not service connected. In November 2003, the applicant reported treatment for alcohol and drugs in 1993; however cocaine use in 2000. The applicant reported working from post-Army until 1990. The applicant was diagnosed with Alcohol Abuse. The applicant started a substance abuse program, but was discharged for nonattendance in February 2004 with diagnoses of Alcohol and Cocaine Dependence. In October, he reported using alcohol and cocaine again. In October 2007, the applicant reported depression “due to worrying about life itself.” In follow-up, he reported depressive symptoms started in 1979 after the loss of his grandmother, who raised him, resulting in alcohol abuse and AWOL. After which, depressive symptoms and substance issues vacillated with life stressors ultimately worsening in 1989. The applicant was diagnosed with Depression, attending two visits. The applicant returned in February 2009 and was seen for symptoms related to health issues with a diagnosis of Mood Disorder due to general medical condition. In July 2018, the applicant returned and “denied any military related trauma;” he was diagnosed with Unspecified Depressive Disorder related to psychosocial stressors. Treatment was noted to be “supportive.” In November 2018, the applicant requested assistance upgrading his discharge; after his grandmother died “They told me to stay, I left…” He attended sporadically through April 2019. In November 2019, psychiatry diagnosed Major Depressive Disorder (MDD) related to family stressors escalating symptoms. He attended two sessions. 18. The Board should consider the applicant's statement in accordance with the published liberal consideration, equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records 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 and the reason for his separation. The Board considered the review and conclusions of the medical advising official as well as his post-service medical encounters. The Board found insufficient evidence of in-service mitigation for his misconduct. The Board considered the post-service letters of reference the applicant provided, but found no other evidence of post-service achievements and determined the documents he provided were insufficient to support a clemency determination. 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. 2. After reviewing the application and all supporting documents, the Board found 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. 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 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. b. Paragraph 3-7b provides 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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. b. 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) AR20190003040 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003040 8 ABCMR Record of Proceedings (cont) AR20190003040 6