ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF:   BOARD DATE:  18 February 2020 DOCKET NUMBER:  AR20190013798 


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty) for periodending 1 June 1981



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20120008002 on 18 September 2012.

2.The applicant states he was late reporting and was discharged because he was late.The Board should consider his application, although it has been more than three yearssince the alleged error, because he was having issues in life with depression, anxiety,and post-traumatic stress disorder.  He realized after seeing a doctor that he should tryto get this corrected.

3.On 4 October 1977, the applicant enlisted in the Regular Army for a term of 3 years.On 7 April 1980, at the age of 20 years old, the applicant reenlisted for a term of6 years.

4.On 24 August 1980, while enroute to his next permanent change of station (PCS),from Fort Hood, TX to Fort Campbell, KY, the applicant went absent without leave(AWOL) and returned on 5 September 1980.

5.The applicant accepted nonjudicial punishment (NJP) on:

.15 September 1980 for being AWOL from 24 August 1980 and remaining absentuntil 5 September 1980


.12 May 1980 for willfully disobeying a lawful order from a superiornoncommissioned officer (NCO) on 30 April 1980

.22 December 1980 for failing to go at the time prescribed to his appointed placeof duty, in which he appealed and the appeal was denied



6.On 15 January 1981, the applicant went AWOL and on 15 February 1981, he wasdropped from the unit rolls.  On 2 March 1982, he was apprehended by civilianauthorities at Westmont, IL for a civilian charge of theft and placed in civilianconfinement.  On 11 March 1981, he was released on bond, with a court date set for27 March 1981, and returned to military control.

7.On 29 April 1981, court-martial charges were preferred against the applicant for onespecification of being AWOL from 15 January 1981 and remaining absent until11 March 1981.

8.On 1 May 1981, the applicant voluntarily requested discharge for the good of theservice in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He consulted with legalcounsel and was advised of the basis for the trial by court-martial, his available rightsand the basis for voluntarily requesting discharge under the provision of AR 635-200,chapter 10.  The applicant elected to submit a statement on his own behalf.  He statedhe requested a discharge because he could not stay in the Army.  His past in the Armyhas been nothing but trouble.  He tried to be a Soldier but it always seemed that theywanted a little too much from him.

9.The applicant initially requested a medical examination; however, in his request for aChapter 10, he elected not to undergo a physical examination.  He underwent a mentalstatus evaluation, which cleared him for separation.

10.His chain of command recommended approval (signature on memorandums oreither missing or not visible) and on 12 May 1981, the appropriate separation authorityapproved the applicant's request directing he be reduced to Private (PVT)/E-1 and hebe issued a discharge under other than honorable conditions.

11.On 1 June 1981, he was discharged accordingly.  His service was characterized asUOTHC.  He completed 3 years, 5 months, and 22 days of net active service this period(11 months and 19 days since his reenlistment).  His DD Form 214 shows:

.He was awarded or authorized:



.M16 Rifle Marksman Marksmanship Qualification Badge

.Hand Grenade Marksmanship Qualification Badge



.Dates of Time Lost During This Period:  800825 – 800904, 810115 – 8103102(AWOL 66 days)



12.On 18 September 2012, the ABCMR denied the applicant’s petition for an upgrade,determining that the evidence presented did not demonstrate the existence of aprobable error or injustice.

13.The applicant states he was late reporting and was discharged because he waslate.  The Board should consider his application although it has been more than threeyears since the alleged error is because he was having issues in life with depression,anxiety, and post-traumatic stress disorder.  His record shows he reenlisted at the ageof 20 years old, he had a civilian charge of theft pending against him (outcomeunknown), he accepted 3 NJPs, charges were preferred against him for being AWOL,and he had 66 days lost due to being AWOL.  He served 11 months and 19 days ofhis 6 years contractual obligation.

14.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial bycourt martial.  Although an honorable or general discharge was authorized, an underother than honorable conditions discharge was normally considered appropriate.
15.At the time of the applicant's discharge, PTSD was largely unrecognized by themedical community and DOD.  However, both the medical community and DOD nowhave a more thorough understanding of PTSD and its potential to serve as a causativefactor in a Soldier's misconduct when the condition is not diagnosed and treated in atimely fashion. Soldiers who suffered from PTSD and were separated solely formisconduct subsequent to a traumatic event warrant careful consideration for thepossible re-characterization of their overall service even if the sexual assault or sexualharassment was unreported, or the mental health condition was not diagnosed untilyears later. (SME Note:  Include if PTSD is applicable)
16.The Office of the Undersecretary of Defense for Personnel and Readiness providesguidance that Boards are to give liberal consideration to veterans petitioning fordischarge relief when the application for relief is based in whole or in part on mentalhealth 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 orexperience existed during or was aggravated by military service, and that the conditionor experience excuses or mitigates the discharge. (SME Note: Include when mentalhealth, sexual assault/harassment, PTSD or TBI is applicable)







15.The applicant requests an upgrade so that he may receive benefits.  The ABCMR isnot authorized to grant requests for upgrade of discharges solely for the purpose ofmaking the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant’s petition and service record inaccordance with the published equity, injustice, or clemency guidance.BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined thatpartial relief was warranted.  The Board considered the applicant’s record of service, the frequency and nature of his misconduct, his request for discharge and the reason for his separation.  The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  Based upon a preponderance of evidence to include the lengthy amount of AWOL in the record, and the last AWOLending only by apprehension, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change in the characterization of service. However, the Board did note the applicant completed term of honorable service which is not currently reflected on the DD Form 214.  Therefore, the Board recommended making that change to more accurately reflect the military service of the applicant. 





















BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

: : GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :: : : : DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by adding thefollowing additional statements to block 18 (Remarks) of his DD Form 214: "SOLDIERHAS COMPLETED FIRST FULL TERM OF SERVICE" and "CONTINUOUSHONORABLE ACTIVE SERVICE FROM 771004 UNTIL 800406".

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to upgrading the characterization of his discharge.

X


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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, set forth the basic authority for the administrative separation ofenlisted personnel.

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  The honorable characterization is appropriate when the quality of the Soldier'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.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. 

c.When a member is to be issued a discharge under other than honorableconditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d.A Chapter 10 (Discharge for the Good of the Service) is applicable to memberswho had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.   
2.On 3 September 2014 the Secretary of Defense directed the Service DischargeReview Boards (DRBs) and Service Boards for Correction of Military/Naval Records(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medicalconsiderations and mitigating factors when taking action on applications from formerservice members administratively discharged UOTHC and who have been diagnosedwith PTSD by a competent mental health professional representing a civilian healthcareprovider in order to determine if it would be appropriate to upgrade the characterizationof the applicant's service. (SME Note: Include when PTSD is applicable)
3.On 25 August 2017 the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole or in part to:  mental health conditions, including PTSD;traumatic brain injury (TBI); sexual assault; or sexual harassment.  Standards for reviewshould 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.  (SME Note: Include when MST, OBH, PTSD is applicable) 
 
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.  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. 
 
//NOTHING FOLLOWS//