IN THE CASE OF: BOARD DATE: 24 September 2020 DOCKET NUMBER: AR20190004885 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20080010534 on 7 October 2008. Specifically, he 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 March 2019 * Crestwood Residential Treatment for Children and Adolescents psychological evaluation, dated 22 March 2002 * Vincennes University academic record, issued 11 May 2018 * his professional resume, undated FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080010534 on 7 October 2008. 2. As a new argument, the applicant states, in effect, he is disabled and his rent is too high. He needs an upgrade to get more benefits to provide a better life for himself and his family. 3. In preparation for his enlistment into the Regular Army, the applicant on 30 November 2005: a. Completed a Standard Form 86 (Office of Personnel Management Security Clearance Application). In respond to Question 19 (In the last 7 years, have you consulted a mental health professional (psychiatrist, psychologist; counselor, etc.) or have you consulted with another health care provider about a mental health related condition?), he answered "NO." b. Underwent a pre-enlistment medical examination; during the examination he did not report any previous psychological issues and was found qualified for service. 4. The applicant enlisted in the Regular Army on 12 January 2006. 5. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reported as absent without leave (AWOL) on the following occasions: * from on or about 23 June 2006 through on or about 4 July 2006 * from on or about 14 July 2006 through on or about 13 September 2006 6. Court-martial charges were preferred against the applicant on 18 September 2006, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 14 July 2006 through on or about 14 September 2006. 7. The applicant consulted with legal counsel on 18 September 2006. 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 an under other than honorable conditions 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board does not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf; he elected not to submit a statement. 8. The applicant’s commander recommended approval of his request on 4 October 2006, with an UOTHC discharge. 9. The separation authority approved the applicant's request for discharge on 10 October 2006, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. The applicant was discharged on 25 October 2006, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his service was characterized as UOTHC, and further shows in: * Item 12c (Net Active Service This Period), he was credited with completing 7 months and 2 days of creditable service * Item 28 (Narrative Reason for Separation), the entry “In Lieu of Trial By Court- Martial” * Item 29 (Date of Time Lost During This Period), the entry "UNDER 10 USC 972: 20060623-20060704; 20060714-20060913" 11. 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. 12. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. After careful consideration of all relevant evidence, the ADRB determined he was properly and equitably discharged and denied his request on 18 February 2008. 13. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 7 May 2008. 14. The applicant provides the following for consideration: • a psychological evaluation performed on 22 March 2002 • his Vincennes University academic record • his professional résumé 15. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 16. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The 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: 2. The applicant’s electronic medical record contains enlistment exams. No other active duty medical records were available. The packet contained an enlistment physical which was void of a psychiatric history. The security clearance application reflects the applicant did not list his residential center as his address for the dates November 2000 to March 2002; rather it lists a family member’s residence. The applicant listed a public high school for the dates he was in residential care. Moreover, he denied psychiatric or related care. It is more likely than not the applicant did not divulge his psychiatric history at enlistment. 3. The applicant is not service connected and Department of Veterans Affairs records are void of contact. The applicant submitted a March 2002 discharge evaluation; he had been at a residential treatment center since November 2000. It noted a life-long history of emotional and behavioral difficulties with diagnoses of traumatic brain injury, Asperger’s Disorder, and Intermittent Explosive Disorder with mood stabilizing medications. Throughout his treatment, cognitive scores placed his overall cognitive abilities in the average range. At the time of the evaluation, his overall intellectual score placed him in the low average range with skills sets varying between average to low Average; he did not have a cognitive handicap. Additionally, the applicant’s academic scores were within a normal range. 4. The documentation is insufficient to make a determination of whether or not his behavioral health conditions mitigate his misconduct. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal 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 ARBA Medical Advisor based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA Medical Advisor regarding there being insufficient documentation to determine whether or not behavioral health conditions mitigate his misconduct. Based on a preponderance of evidence, the Board determined 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 :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080010534, dated 7 October 2008. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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) AR20190004885 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004885 7 ABCMR Record of Proceedings (cont) AR20190004885 6