IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20190009143 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written letter 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: a. He had preexisting psychological problems prior to his enlistment and during his enlistment. According to the directive now authorizing review of general discharges with the code "JFS" (conduct triable by court-martial), allowing preexisting psychological issues, symptoms, and conditions to be considered as mitigating factors for discharge upgrades. He is respectively requesting said review of his discharge and an upgrade of his discharge to Honorable, based on the following mitigating factors. He was then and now suffering from several psychological problems such as acute anxiety, post- traumatic stress disorder (PTSD), and depression, all as a result of the intense mental abuse from his father, who served from 1960 to 1975 with Military Supply Command in the Republic of Vietnam. b. He was very mentally abusive and created a very violent and dysfunctional environment. The reason for him being absent without leave (AWOL) was due to the need to be the primary caretaker of his mother who had become sick and required a health aid, which was impossible at the time, due to lack of funds. He was proud to be a Soldier, actually excelled at being one as his basic training records due reflect and confirm. He regrets that he lost out on a great career. Since that time he has applied himself and earned double PhDs in theology, and he is involved in veterans’ advocacy & street ministry. c. He has developed type 1 acute diabetes and he is not eligible for Veterans Administration (VA) hospital medical services. Although the complications resulting from the above mentioned medical issues have required subsequent hospitalizations and surgeries, as he has aged he has come to realize that one's character, attitude, personality and integrity are the elements that make American and Americans greatly respected and emulated worldwide. The mistakes are long past gone and lessons learned are invaluable. He prays that the Board can make an open-minded evaluation of the facts and mitigating factors presented, and sees the regret and contriteness of his heart and ability to admit to the fact that he was wrong. I apologize and pray that the Board considers and grants the relief sought. 3. On 14 November 1980, a medical examination for the purpose of enlisting in the Regular Army shows, the applicant indicated he had never been treated for a mental condition and never suffered from depression or excessive worry. 4. On 21 November 1980, he enlisted in the Regular Army for a period of 3 years. 5. His record contains medical documents completed on 17 March 1981 that shows: * he was cooperative, alert, and had no unusual thought process disturbance * he had no suicidal or homicidal ideations * the applicant was diagnosed as a pathological fabricator manifested by family problems and unit adjustments 6. The applicant’s Personnel Qualification Record shows he was AWOL from on or about 1 April to 10 June 1981. 7. On 1 May 1981, court-martial charges were preferred against the applicant for being AWOL and stealing a radio and coat. 8. On 12 June 1981, a mental status evaluation shows the applicant had the mental capacity to understand and participate in separation proceedings. He was mentally responsible and psychiatrically cleared. 9. He completed a Personnel Control Facility Information Sheet, wherein, he stated “I do not want to stay in the Army”. 10. On 15 June 1981, a Personnel Control Facility Interviewer Sheet shows the applicant stated he was AWOL from Fort Gordon, GA, and he went AWOL because his mother’s illness required his presence after his father was incarcerated in Rahway, NJ. He also stated he utilized his chain of command to no avail before going AWOL. 11. On 15 June 1981, court-martial charges were also preferred against the applicant for being AWOL from on or about 1 April to 11 June 1981. 12. On the same date, the applicant voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, his available rights, and the possible effects of an UOTHC discharge. He elected not to submit statements in his own behalf. b. The applicant was medically cleared and his chain of command recommended approval of his request to be discharged with the issuance of an UOTHC Discharge Certificate. c. The separation authority approved the applicant’s discharge request for the good of the service and directed he be furnished an UOTHC Discharge Certificate. 13. On 21 August 1981, the applicant was discharged accordingly. He completed 6 months and 21 days of net active service. He had lost time from 1 April to 10 June 1981. The applicant was not awarded a personal decoration. 14. The applicant contends he had a preexisting mental condition before and during his enlistment; nevertheless, his record contains no evidence, nor did he provide any evidence of a mental health condition. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army. The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 15. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 16. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 17. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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, his record of service and length of service, the frequency and nature of his misconduct, his stated reasons for AWOL, the reason for his separation and whether to apply clemency. The Board found no evidence and the applicant provided none to support his claim of a pre- existing mental health condition. The Board considered this statement regarding academic achievements and current work with Veterans. The Board found insufficient evidence to overcome the applicant’s misconduct and determined to not apply clemency. 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 :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 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) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was 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 generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. 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. 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. 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, 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. 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. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20190009143 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009143 7 ABCMR Record of Proceedings (cont) AR20190009143 5