IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20190003057 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) 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 due to the murder/death of his mother his mental state became muddled. There was a possibility of post-traumatic stress disorder (PTSD) prior to anyone even knowing that PTSD was an issue. 3. On 28 May 1976, he enlisted in the Regular Army for a period of 4 years. The applicant completed training requirements and was awarded military occupational specialty 11E (Armor Crewman). 4. His service record shows: a. He received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on at least 4 occasions for abandoning his guard post and failing to go at the time prescribed to his appointed place of duty on 3 occasions. b. He was absent without leave from on or about 27 to 30 November 1977 and 27 to 29 December 1977. 5. On 5 December 1977, a medical examination cleared the applicant for administrative separation. 6. On 15 December 1977, a mental status evaluation shows the applicant had no significant mental illness. He desired to be separated because he believed the service (Army) was responsible for his present attitude and behavior. He expressed a pathetic attitude toward his military duties and since enlisting he had received five Articles 15. The applicant did not express any motivation to modify his attitude and refused therapy when offered and had no psychiatric disorder. The applicant was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. 7. On or about 10 January 1978, a Bar to Reenlistment Certificate was approved and imposed against the applicant. 8. The applicant’s service record contained statements from his supervisor and commander that state, in pertinent part, the applicant: * had been counseled both verbally and written for his disregard for formations and being at his assigned place of duty * requested to be discharged, and should be discharged at the earliest opportunity * has established a pattern of shirking his duties by his frequent unauthorized absence from work * displayed a lack of appropriate interest in his job and the military * should be eliminated from active service as expeditiously as possible; this action will be in the best interest of the service member and the U.S. Army 9. The applicant’s commander notified him of his intent to recommend him for separation under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), for misconduct based on an established pattern of shirking. The commander advised him of his rights. a. He was advised of the basis for his contemplated separation and its effects; the rights available him, and the effect of a waiver of rights. He elected not to consult with legal counsel. b. His chain of command recommended approval of his discharge and to waive rehabilitative transfer. c. The separation authority approved his discharge with an under other than honorable conditions character of service, and waived the requirement for rehabilitative transfer. 10. On 18 April 1978, the applicant was discharged accordingly. He completed 1 year, 10 months and 16 days of net active service. He had 5 days of lost time, and was not awarded a personal decoration. 11. On 14 April 2019, the Army Review Boards Agency (ARBA), Case Management Division requested that the applicant provide a copy of the medical documents that supported his issue of PTSD. He did not respond. 12. On 25 October 2019, the ARBA Psychologist reviewed the applicant’s records and provided a medical advisory for this case. The medical advisory opinion was provided to the Board and the medical advisor stated, in pertinent part: a. A review of the electronic Veterans Administration (VA) medical record indicated the applicant was registered with the VA but has not received any evaluations or treatment. He did not have a service connected disability rating. b. In accordance with (IAW) the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there was no documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicated that the applicant did meet medical retention standards with respect to behavioral health diagnoses IAW AR 40-501 (Standards of Medical Fitness). There was no behavioral health diagnosis to consider as a mitigating factor in the misconduct that led to the applicant’s discharge. 13. On 29 October 2019, the Case Management Division provided the applicant with a copy of the medical advisory. He did not respond. 14. AR 635-200, chapter 14 states that 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. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 15. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 16. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement 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 reason for his separation and whether liberal consideration or clemency should be applied. The Board considered the applicant’s claim of PTSD and the review by the medical advising official. The Board concurred with the conclusion of the advisory and found insufficient evidence of in-service mitigating factors to overcome the misconduct. 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 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. 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 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct based on an established pattern of shirking. 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. 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. 3. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 4. 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. a. 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. b. 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) AR20190003057 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003057 6 ABCMR Record of Proceedings (cont) AR20190003057 5