IN THE CASE OF: BOARD DATE: 11 September 2020 DOCKET NUMBER: AR20190006210 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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), undated * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 3 February 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 young and immature and he did not make sound decisions. His poor decisions were caused by mental health issues for which he failed to seek help. He served almost 48 months honorably; however, his conduct deteriorated at the end of his enlistment. He strongly believes the major factor in his conduct was an undiagnosed mental illness. He is currently enrolled in mental health treatment at the Department of Veterans Affairs (VA) Clinic in Tallahassee. He completed four years, three months and three days of active duty. Based upon his time served, he should at least be granted an upgrade to his discharge. 3. The applicant enlisted in the Regular Army on 4 October 1977. 4. The applicant accepted non-judicial punishment (NJP) on 27 November 1978, under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ), for being derelict in the performance of his duties on or about 18 November 1978 and for failing to return from pass on 17 November 1978. 5. Before a special court-martial on or about 3 April 1979, in the Republic of Korea, the applicant was convicted of being absent without authority (AWOL), from on or about 4 February 1979 through on or about 5 February 1979; violating a lawful general order by purchasing a controlled item in excess of limits; and stealing the property of another Soldier, on or about 1 January 1979. He was sentenced to confinement at hard labor for three months, forfeiture of $150.00 pay per month for three months, and reduction to the lowest enlisted grade. The sentence was approved on 6 April 1979. 6. The applicant received a letter of commendation from Headquarters, 3rd Battalion, 11th Infantry Regiment, 5th Infantry Division (Mechanized), Fort Polk, LA on the following occasions: * on 18 March 1980, for outstanding performance in the field with Company C, 3rd Battalion, 11th Infantry Regiment, from 28 January 1980 through 29 February 1980 * on 15 August 1980, for outstanding performance while assigned to Company C, 3rd Battalion, 11th Infantry Regiment, from 1 April 1980 through 15 August 1980 7. Before a special court-martial on or about 14 April 1981, in the Republic of Korea, the applicant was convicted of the wrongfully appropriating one M151A1 jeep, the property of the U.S. Government, on or about 10 March 1981. The court sentenced him to reduction to the lowest enlisted grade and confinement at hard labor for 90 days. The modified sentence, consisting of reduction to the lowest enlisted grade and confinement at hard labor for 60 days, was approved on 22 April 1981. 8. The applicant's service record contains a locally developed unit police report, dated 31 July 1981, which indicates he committed a pass violation by returning late from his overnight pass. 9. The applicant was counseled by his unit commander, on 4 September 1981, for being drunk and violating a pass. 10. The applicant's service record contains multiple DA Forms 2496-1 (Disposition Form) that show he was issued citations for the following violations: * on 8 September 1981, for returning late from pass * on 9 September 1981, for returning late from pass * on 27 October 1981, for violating his curfew, disobeying a lawful/direct order, and taking an unauthorized pass * on 22 November 1981, for taking an unauthorized pass 11. The applicant accepted NJP on or about 9 December 1981, under the provisions of Article 15 of the UCMJ, for breaking restriction by leaving the limits of on or about 6 December 1981. 12. The applicant underwent a medical examination on 9 December 1981. The relevant Standard Form (SF) 93 (Report of Medical History) indicates he reported being in good health. The relevant SF 88 (Report of Medical Examination) indicates he was medically qualified for separation. 13. The applicant was notified on 11 December 1981 of his immediate commander’s intent to initiate elimination actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33, by reason of patterns of misconduct. The commander cited the applicant's failure to respond to counseling, continued actions requiring NJP and judicial punishment, substandard duty performance, disregard for military discipline, and nonconformity to established military norms as reasons for the recommendation. 14. The applicant underwent a mental status evaluation on 17 December 1981. The relevant DA Form 3822-R (Report of Mental Status Evaluation) indicates the evaluation revealed the applicant had persisting insomnia. However, there was no mental disorder present that would preclude him from undergoing appropriate administrative action. 15. The applicant was the subject in a U.S. Army Criminal Investigation Command (CID) investigation, involving an act of housebreaking, larceny, and attempted bribery that took place on or about 13 October 1981, at. The relevant DA Form 2800 (CID Report of Investigation), CID Form 94 (Agent's Investigation Report), DA Form 3881 (Rights Warning Procedure/Waiver Certificate), and witness statement are available for review, in their entirety, in the applicant's service record. The final outcome of the investigation is not included in the record. 16. The applicant accepted NJP on or about 9 January 1982, under the provisions of Article 15 of the UCMJ, for being derelict in the performance of his duties by willfully failing to remain on compound, on or about 5 January 1982. 17. The applicant met with legal counsel on 15 January 1982 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected not to submit a statement in his own behalf. 18. The applicant's immediate and intermediate commanders formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The Staff Judge Advocate (SJA) also reviewed the recommendation, concurred, and further recommended the rehabilitative transfer requirements be waived. 19. Consistent with the chain of command’s recommendation, the separation authority approved the applicant's discharge on 27 January 1982, under the provisions of Army Regulation 635-200, Chapter 14, waived any further rehabilitation efforts, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 20. The applicant was discharged on 3 February 1982, under the provisions of Army Regulation 635-200, paragraph 14-33b (1), by reason of "Misconduct – frequent incidents of a discreditable nature with civil or military authorities." The DD Form 214 he was issued confirms his service was characterized as UOTHC. 21. The applicant provides three third party letters of support: a. A counselor at the Veterans of America (VOA), , states the applicant has been in the Veterans Village program since January of 2019. He has demonstrated progress when working on life plan goals, completed his community service hours as required, and adheres to the recommendations of VOA staff. He recognizes the importance of managing his mental health and improving his physical health. He does not hesitate to contact the local community clinic for services. He does not have medical insurance and experiences difficulty paying for prescribed medications. He attends weekly individual therapy and takes advantage of other meetings that are offered, to include art therapy. He would benefit greatly from VA health services. b. A case manager from the Big Bend Homeless Coalition states that she has worked with the applicant for the past nine months. She can attest to his strength of character and compassion for others. He has been patient and kind during the housing process, despite living in an abandoned car. He now housed by the Veterans Village program. He is working with staff for mental health treatment, attends all monthly meetings, and volunteers in his free time. He does not have health insurance and desperately needs it. He is an outstanding, active citizen with a great commitment to community service. c. The VA Grant and Per Diem Liaison, Department of VA, , states that since the applicant's arrival into the Veterans Village program, he has been proactive at addressing his life plan goals, to include housing, improving physical and mental health, maintaining recovery, obtaining income and participating in meaningful activities. He is motivated, attends all appointments, and follows through with recommendations. He has exhibited extraordinary behaviors while in the program. It is a sincere pleasure to have him in the program, and he is headed in the direction of success. 22. 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 an undiagnosed mental health condition at the time of his discharge. 23. The Board should consider the applicant's overall service record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. 24. 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 military service records. His service record indicates he completed a separation physical completed and met retention standards on 9 December 1981. On 17 December 1981, the psychiatrist completed a mental health evaluation and determined the applicant met retention standards and did not have a psychiatric diagnosis. 2. A review of VA’s Joint Legacy Viewer (JLV) indicates he was first seen in the VA on 18 December 2000 and was diagnosed with alcohol, cocaine, and heroin abuse. He receives case management services through the homeless veteran program. On 4 April 2019, he received a mental health evaluation and was diagnosed with insomnia. On 5 November 2019, his case manager documented a diagnosis of alcohol dependence. He does not have a service connected disability rating. While his case manager reports the applicant is working on improving his physical/mental health, there is no documentation to support a behavioral health condition at the time of his discharge. . 3. No medical records or statements regarding a mental health diagnosis were provided by the applicant. The applicant met retention standards at the time of his discharge. There is no diagnosed behavioral health condition to consider with respect to mitigation of 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 applicant's claim to have had mental health issues and 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 evidence to support a conclusion that he had a behavioral health condition that mitigated the misconduct that led to his discharge. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provided 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 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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) AR20190006210 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006210 8 ABCMR Record of Proceedings (cont) AR20190006210 7