ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2020 DOCKET NUMBER: AR20190015019 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge or an honorable 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), dated 4 October 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 December 1980 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 it has been almost 40 years and he is still paying for his mistake. He did his time for his absence without leave (AWOL). He is 61 years old, his health is not great, and he would like to apply for Department of Veterans Affairs (VA) benefits. He served in the U.S. Army as an Infantryman from 1978 through 1980. He was administratively discharged because he went AWOL. He was a 21 year old kid who made mistakes. He had just become a new father and wanted to see his child. The Army denied his leave request, so he left. The Army's decision to deny his leave has affected him ever since that day. He suffers from post-traumatic stress disorder (PTSD) and depression because of this event. He believes he has suffered enough, served his time, and paid his dues. 3. The applicant enlisted in the Regular Army on 13 April 1978. Upon completion of his initial entry training, he was assigned to the Combat Support Company, 2nd Battalion, 504th Infantry (Airborne) Regiment, Fort Bragg, North Carolina. 1 4. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions: * on 26 November 1979, for failing to go at the time prescribed to his appointed place of duty, to wit: battalion duty, on or about 11 November 1979 * on 12 March 1980, for without authority and with the intent to avoid field exercises, absenting himself from his unit on or about 19 February 1980 5. The applicant acknowledged that he had been counseled, on or about 2 October 1980, on the requirements for the completion of a medical examination prior to separation. He elected not to undergo a medical examination. 6. The applicant underwent a mental status evaluation on 6 October 1980. The relevant DA Form 3822-R (Report of Mental Status Evaluation) indicates the following: * his behavior was normal * he was fully alert and fully oriented * his mood or affect were unremarkable * his thinking process was clear with normal thought content * his memory was good * he had the mental capacity to understand and participate in proceedings; he was mentally responsible; and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 * there were no additional remarks noted 7. Court-martial charges were preferred against the applicant on 8 October 1980, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his organization, without authority, from on or about 9 May 1980 through on or about 21 September 1980. 8. The applicant consulted with legal counsel on or about 9 October 1980. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. In a self-authored statement, he noted that he was 23 years old with a 9th grade education. He joined the Army because he did not have a job. He had trouble at home and needed to be there with his wife and kids. 9. The applicant's immediate and intermediate commanders recommended approval of his request for separation under the provisions of Army Regulation 635-200, Chapter 10. His immediate commander opined that a discharge at this time would be in the best interest for all involved. He stated there did not appear to be any evidence of mental defect or derangement at the time of the misconduct. He further recommended that the applicant be issued a UOTHC discharge. 10. The separation authority approved the applicant's request for discharge on 27 October 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He further directed the applicant be discharged in the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 8 December 1980, under the provisions of Army Regulation 635-200, Chapter 10, by reason of conduct triable by court-martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with two years, three months and nine days of net active service. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for a review of his discharge proceedings. The ADRB considered his request, determined he was properly discharged, and denied his request for relief. The applicant was notified of this determination on 6 July 1987. 14. 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 PTSD and depression at the time of his discharge. 15. The Army Review Boards Agency (ARBA) psychiatrist was asked to review this case. The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct leading to his UOTHC discharge was due to PTSD and depression he developed while on active duty. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documents, the available military personnel records and the VA electronic medical record (Joint Legacy Viewer (JLV)). No hard copy military medical records or civilian medical documentation was provided for review. Review of the VA electronic medical record (JLV) indicates that it contains no information regarding the applicant. The applicant contends that he suffered from PTSD and depression and this led to his misconduct and eventual UOTHC discharge from the Army. He has provided no medical documentation of these diagnoses. Given the lack of sufficient medical evidence, the ARBA psychiatrist cannot make any decision regarding medical mitigation at this time. The ARBA psychiatrist will gladly review the applicant’s request for discharge upgrade should he provide medical information applicable to his time in service at some future date. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a psychiatrist's 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 PTSD claim and the review and conclusions of the ARBA psychiatrist based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA psychiatrist regarding the lack of medical records documenting his claimed behavioral health conditions. The Board found the applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. 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. 9/17/2020 X CHAIRPERSON 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 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. Paragraph 3-7b provides 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 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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//