ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190006752 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge and a change of his narrative reason for separation to expiration of term of service (ETS). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * two letters from the Department Veterans Affairs (VA) * DA Form 2-1 (Personnel Qualification Record) * letter from the National Personnel Records Center * enlistment documents * medical documents * DD Form 214 (Certificate of Release or Discharge 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. In a 7 page statement, the applicant describes his childhood and living conditions and states, in part: a. During these years the Vietnam War was going on, and he remembers seeing the daily news reports on television and watching neighbors and family members leave for military service. Growing up, it seemed that serving in the Army was both an honorable thing to do and an opportunity for folks who were poor and did not have a lot of education to "move up in the world." As a result, after he turned 16, he quit high school and tried to join the Army, but they wouldn't take him at that time. He was disappointed, but he gave up on the idea of joining the Army and went to work in a local textile mill. He later worked in a manufacturing plant, but still hoped that one day he would be able to join the Army. When he was 17, his first daughter was born. He married his daughter’s mother after he turned 18. b. In May 1978, he decided to try again to enlist into the Army and was accepted. He was excited and immediately told his wife they had just joined the Army. He completed basic training at Fort Jackson, S.C. He actually enjoyed it and he kind of knew what to expect, having learned quite a bit from his brother and cousin. Not all of his experiences at Fort Jackson were pleasant. He remembers it being brutally hot, so hot that two trainees died of heat exhaustion. After the first five or six weeks of training, they earned weekend passes, and since his home was only about 2 hours away from Fort Jackson, he was able to go home for the weekend. On one weekend, he went home on a pass and took a friend with him. When the weekend was coming to an end, he looked for, but could not find his friend. He did not want to leave his friend stranded because they had been taught to look out for each other; therefore, he did not report back to Fort Jackson on time. He was sure he would get into trouble if he returned to Fort Jackson without him, but it didn't occur to him to call his company to let them know what was going on. After he returned to Fort Jackson, he appeared before his company commander and explained why he hadn't returned on time. She was very lenient and although she gave him an Article 15, the only punishment was a $50 fine. c. After he finished advanced individual training, he went home on leave to get ready for the move to his first duty station, Fort Hood, Texas. He sold his car, put their furniture in storage, and prepared to move his family to Fort Hood. Fortunately, he had a brother-in-law who was stationed at Fort Hood and after they arrived, his wife and daughter were able to stay with him while he got situated. He was assigned to Headquarters Company, 1/5 Cavalry. All of the unit supply companies were located in one area on post and that is where he was assigned to work. He caught on to his duties pretty quickly, and both his first sergeant and company commander were pleased with the way he ran the supply section. He soon became popular in his unit and the other units in the battalion, since he was known as someone who could "get stuff done." He kind of got a reputation as "Top's right hand man" and everyone wanted to be his friend. d. Sometime in the Fall of 1978, it was announced that "REFORAGER 79" was coming up and they were going to Germany. After arriving in Belgium and unloading their vehicles, they travelled to Stuttgart, Germany. After they arrived in Stuttgart, they stayed in what they called "Tent City," a sea of canvas. There were units from all over staying in "Tent City," and it was rough, cold, wet, muddy and miserable. The mud was deep enough that you could sink almost to your knees. They used pallets to put under our cots so they would wouldn't sink down into the mud while they slept. e. During REFORAGER, their supply section was broken down and assigned to different units in the brigade. When the line units were in the field, he and the Supply Sergeant would be positioned with their unit and then make the runs (back to headquarters) each day to obtain necessary supplies. They were "in the field" for an extended period, moving with their line unit, and constantly on the move to keep that unit supplied. When the exercise was over, they were tasked with washing each and every vehicle in the brigade. They ran three shifts, around the clock, and made sure to clean every bit of mud, dirt, plant material, etc ... out of the cracks and crevices of each vehicle. Once the vehicles were clean, they were told to prepare to leave for Fort Hood. f. After they returned to Fort Hood, their command decided to break down the supply section and assign supply personnel to each unit. He had originally been assigned to worked in Headquarters, Headquarters Company (HHC), but Charlie Company's first sergeant went to the brigade and had orders cut for me to go to his company's supply room. His first sergeant was very unhappy about this. As a result, the two first sergeants kind of "went at it," arguing with and insulting one another for over a week. He was kind of caught in the middle. It was at this time that his back problems started interfering with his ability to do his job. g. Back in basic training, he heard a "pop" in his back when he dove into a hole during a field training exercise. This was followed by a stinging pain. He kind of shook it off and kept training. He finished basic training and AIT and went on to his permanent assignment at Fort Hood. He didn't say anything about his back bothering him for quite some time, attempting to stretch, take ibuprofen, and otherwise attempt to "take care of it myself." Eventually, his back got worse, and he had to have it looked at by the medical folks. They ran tests on his back, had me do special exercises and stretches, and then wrote him up for bed rest and Motrin. He kept moving forward, working nonstop throughout REFORAGER and after their return to Fort Hood, in spite of the pain. At one point, the pain got so bad he took to walking kind of sideways in an effort to relieve his back. The medical folks recognized there was definitely something wrong, and after some testing, it was determined he had a herniated disk in his lower back that was causing the pain. He was sent to the Army hospital at Fort Sam Houston to undergo back surgery. Just before his surgery, his wife had just given birth to their second child, adding to the stress he was experiencing during this period of time. h. After his surgery, the medical folks had given him 30 days convalescent leave to recover. His company commander and first sergeant told him they did not want him to take that much time off, but to instead take off 7 days, followed by 7 days of work, then another seven days of convalescent leave, and so on. His doctor had to step in and tell them he was ordering me to take 30 consecutive days of leave and they did not have the authority to modify his orders. That was "the beginning of the end" for his military career. Both the company commander and first sergeant became very pissed at him and after he returned from convalescent leave, they were very hard on him. He was still on profile for his back and they repeatedly directed him to do things that violated his profile. When he resisted, they gave him extra duty. When he told them he had to go to a doctor's appointments, they called the medical facility to make sure he wasn't lying about having the appointment, and then called the facility again to make sure he showed up for each appointment. It seemed as though they were looking for him to do something that would give them an excuse to discipline him, all because he could not function at the same level while he was recovering from back surgery. i. In spite of this treatment, he continued to do his job to the best of my ability. As noted above, he even trained a sergeant from the motor pool on supply procedures, so that he could take over as company Supply Sergeant. It was at this point he came down on orders for an unaccompanied tour in Alaska. Still recovering from back surgery and with his wife having just given birth to a new baby, he had to figure out how to get himself from Fort Hood to Alaska. Neither his company commander nor his first sergeant seemed inclined to offer any assistance. The only help he received from them was a month's advance on his pay so he could rent a U-Haul and take his family back to North Carolina. Unfortunately, he had to settle for a pretty sketchy location for his family and didn't feel very comfortable with the idea of leaving them there while he went to Alaska. He tried to get help from his chain of command, but they didn't seem interested in helping him. He felt like he was pretty much on his own. j. He ended up not leaving for Alaska, he just couldn't bring himself to leave his wife, small child, and new baby to fend for themselves in North Carolina while he was stationed thousands of miles away. He ended up going to Fort Bragg, N.C. to tum himself in and to figure out what to do next. It was at that time he was told he could get out of the Army with an administrative discharge, which wasn't the same thing as a bad discharge he could get from a court-martial. He didn't really understand what it meant, it wasn't until sometime later he learned his discharge was called "Other Than Honorable," and it deprived him of all of his veterans benefits. In any case, asking for this discharge seemed like a way to straighten things out with the Army while being able to take care of his family. He accepted the discharge and returned home. He then got a job and found his family a better place to live. He went back to school and obtained his GED and eventually started taking college courses. He got a certificate in mechanical drafting from Gaston College, in Dallas, NC and got a job at Curtis Wright Flight Systems in Shelby, NC, as a CNC Machinist. He later went back to school and got additional certificates in CNC Programming, Blueprint Reading, and CAD Design. k. In 1989, he had another back surgery. His back continued to bother him and in 1992, he had to have another surgery to stabilize his lower back. He was told he could not return to work and that I would have to go on disability. He refused because he knew he could make a lot more money if he kept working and his family needed him to do so. He worked for another 25 years and also went back to college to study Mechanical Engineering. Unfortunately, in October 2017, he was diagnosed with multiple myeloma, a form of blood/bone cancer and was forced to stop working and file for disability. He is now going through a variety treatments for his condition. Although he is hopeful about the outcome, it is pretty clear he won't be able to return to work. l. While he now recognizes he could have handled the situation better, he believes there were extenuating circumstances that led to his going absent without leave and ultimately to receiving an Other Than Honorable discharge. Before things went wrong for him, he was an outstanding soldier with a promising future in the Army. The applicant’s complete statement is available for the Board’s review. 3. The applicant DA Form 2-1 shows in item 21 (Time Lost) shows he was AWOL on the following occasions: * 15 July 1976 to 16 July 1978, for 2 days * 3 June 1980 to 23 June 1980, for 21 days * 10 July 1980 to 9 February 1981, for 215 days 4. The applicant underwent back surgery on 26 October 1979. He was given 30 days of convalescent leave and 60 day L3 profile. 5. The applicant records show he was issued temporary L3 profiles on the following occasions: * 11 July 1979, for 30 days to automatically be canceled on 10 August 1979 * 1 November 1979, for 60 days to automatically be canceled in 60 days * 18 December 1979, for 60 days to automatically be canceled in 60 days 6. The applicant underwent a mental evaluation on 18 February 1981, which found he met retention requirements. 7. The applicant’s complete separation packet is not available for review; however, his record contains the following: a. DA Form 2496-1 (Disposition Form), dated 5 March 1981, which states the applicant is pending court-martial for AWOL and submitted a request for discharge for the good of the service within the purview of Chapter, 10 Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). b. A DD Form 214, which shows the applicant was discharged on 26 March 1981, under the provisions of Army Regulation 635-200, chapter 10, Administrative Discharge- Conduct Triable by Court Marital. He completed 2 years, 1 month, and 28 days of net active service this period. He was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. The applicant’s provides a letter from the Gaston County VA request the applicant’s application be expedited due to his health condition and a letter supporting the applicant’s request. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 at any time after the charges have been preferred. A UOTHC discharge is normally considered appropriate. 11. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 12. In reaching its determination, the Board can consider the applicant's petition, his statement and service documents, 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 and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement and reasons for his AWOL, the letter requesting to expedite his case, the frequency and nature of his misconduct, his available medical records showing back surgery and temporary profiles, the reason for his separation and whether to apply clemency. The Board found the applicant stated what he accomplished post-service, but he provided no additional evidence or letters of reference in support of a clemency determination. The Board found insufficient in-service mitigation of his misconduct and determined, based on a preponderance of evidence, that the character of service he received upon discharge 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. An UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states 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. 3. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. 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. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 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. 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. ABCMR Record of Proceedings (cont) AR20190006752 7 1