BOARD DATE: 15 September 2020 DOCKET NUMBER: AR20190014123 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation 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 (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, in effect, because he was “ED, bipoly” (sic) and he did use drugs. He was self-medicating his bipolar disorder. Also at this time, the Army did not test for this. 3. On 31 August 1976, the applicant enlisted in the Regular Army for a period of 3 years. He was 18 years old when he enlisted in the Regular Army. 4. The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 separate occasions for: * failing to obey a lawful general order * being absent without leave (AWOL) from on or about 30 June to 1 July 1977 and 6 to 8 July 1977 * being AWOL from on or about 11 to 14 July 1977 * wrongfully possessing marijuana * being AWOL from on or about 18 to 22 January 1979 5. His record contained documents that show he passed at least 10 worthless/bad checks and he was counseled by his chain of command for those worthless/bad checks. 6. On 21 February 1979, the applicant’s commander notified him of his intention to recommend him for discharge under the provisions of chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for frequent acts of misconduct which resulted in NJP under the provisions of Article 15 of the UCMJ four times; and frequent incidents of passing bad checks. The applicant’s commander also notified the applicant of his rights. a. Counsel advised the applicant of the basis for this contemplated separation and its effect and the rights available to him. The applicant waived consideration of his case by a board of officers, a personal appearance before a board of officers, and waived representation by military or civilian counsel. He also elected not to submit statements in his own behalf. b. His commander formally recommended him for separation from the service due to misconduct under Section V, chapter 14, AR 635-200. The specific reason for this recommendation was based on the applicant’s frequent incidents of a discreditable nature with civil or military authorities. His commander also requested a waiver of rehabilitative transfer. c. The applicant’s chain of command recommended approval of his administrative separation and waiver of rehabilitative transfer. The Judge Advocate General office concurred with the request. d. On 12 March 1979, a Report of Medical Examination shows he was medically cleared for separation actions. On 15 March 1979, a Mental Status Evaluation indicated the applicant had no significant mental illness and he had the mental capacity to understand and participate in separation board proceedings. e. On 22 March 1979, the Assistant Adjutant General of Headquarters, 82nd Airborne Division, Fort Bragg, NC, indicated that the appropriate separation authority had approved the discharge request and it was being transmitted to the Separation Transfer Point for separation processing and discharge from the Army. The Assistant Adjutant General further indicated the applicant would be furnished a Discharge Certificate Under Other Than Honorable Conditions (DD Form 794A). 7. On 5 April 1979, the applicant was discharged accordingly. His DD Form 214 shows he was discharged in accordance with paragraph 14-33b(1), AR 635-200 for patterns of misconduct. His character of service was listed as under other than honorable conditions. He completed 2 years, 6 months, and 27 days of net active service with lost time from 18 to 21 January 1979, 6 to 7 July 1977, 11 to 13 July 1977, and 30 July 1977. The applicant was awarded or authorized the Parachutist Badge, Sharpshooter Badge (M-16 rifle), Sharpshooter Badge (hand grenade). 8. In April 1988, the applicant and his counsel appeared before an Army Discharge Review Board (ADRB) hearing. The ADRB denied the applicant’s request for an upgrade of his discharge and determined he was properly and equitably discharged. During the hearing the applicant and counsel asserted his record of NJPs were isolated and minor offenses. His record of AWOL indicated only minor or isolated offenses. He further contended his ability to serve was impaired by his “youth and immaturity.” He did not mentioned mental health issues or drug use. 9. On 12 August 2008, the ABCMR provided the applicant with a copy of the ADRB’s decision concerning his case number AD86-05051 and a copy of his DD Form 214 related to his 1979 discharge. 10. AR 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 ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 12. AR 635-200 (Personnel Separations – Enlisted Personnel) provides the authority for separation of enlisted personnel. Chapter 14 provides for separation for misconduct, and states, in pertinent part, members are subject to separation under the provisions of this section for patterns of misconduct, frequent incidents of a discreditable nature with civil or military authorities. 13. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 14. 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: The available documentation is insufficient to determine whether or not a psychiatric condition was present in-service. 2. The applicant's record contains a Mental Status Evaluation which cleared the applicant for separation with no diagnosis. The separation physical did not indicate behavioral health care symptoms, conditions, or medications. 3. The applicant is not service connected. An October 2019 primary care note listed Unspecified Schizophrenia Spectrum and Other Psychotic Disorder. The provider indicated the applicant had recently been released from incarceration with antipsychotic scripts. The applicant did not submit medical records. BOARD DISCUSSION: 1. The Board determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, 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 behavioral health claim 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 documentation to determine whether or not a psychiatric condition was present during his period of service. 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 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. AR 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 ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) provides the authority for separation of enlisted personnel. Chapter 14 provides for separation for misconduct, and states, in pertinent part, members are subject to separation under the provisions of this section for patterns of misconduct, frequent incidents of a discreditable nature with civil or military authorities. a. 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. 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. An under other than honorable conditions (UOTHC) 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 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014123 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014123 6 ABCMR Record of Proceedings (cont) AR20190014123 5