IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20210008179 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Congressman Letter, dated 18 November 2020 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 indicated post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health conditions are related to his request. He states he believes his character of service was wrong. He was in the early stages of PTSD and deterioration of his aortic valve. He was having constant blackouts, severe disciplinary problems, and recurring nightmares. 3. On 4 November 1987, he enlisted in the Regular Army for a term of 4 years, at the age of 19 years old. 4. After completing his initial entry training, he was awarded the military occupational specialty 11C (Indirect Fire Infantryman). On 19 February 1988, he attended basic airborne training and on 11 March 1988, he attended RIP (Ranger Indoctrination Program), but he did not complete the course because he was medically disqualified; both courses were performed at Fort Benning, GA. 5. On 10 May 1988, he was assigned to the Fort Bragg, NC, as an Ammo Bearer. On 3 August 1988, the command directed that his Skill Qualification Identifier, Parachutist (P) be withdrawn. 6. On 7 September 1988, he went absent without leave (AWOL) and on 28 September 1988, he surrendered to the police in California and flew back to North Carolina on his own. He surrendered to his company on his own. 7. On 30 September 1988, he went AWOL and on 9 March 1989, he was apprehended by civilian authorities in Beaumont, TX. He was returned to military control and assigned to the U.S. Army Personnel Control Facility, Fort Sill, OK. 8. On 15 March 1989, court-martial charges were preferred against the applicant for two specifications in violation of Article 86, under the Uniform Code of Military Justice (UCMJ) for being AWOL from 7 September 1988, remaining absent until 25 September 1988 and from 30 September 1988, remaining absent until 9 March 1989. 9. He voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and he elected not to submit a statement on his own behalf. 10. His commander recommended approval of his request for discharge. The case was reviewed by the Chief, Criminal Law Division and on 30 March1989, the appropriate separation authority approved the applicant's request, directing he be issued a discharge under other than honorable conditions. He was the rank of Private E-1 at the time his discharge was approved. 11. On 26 April 1989, he was discharged accordingly. His service was characterized as UOTHC. He completed 11 months and 26 days of his 4-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 178 days lost time (AWOL) and he was awarded or authorized: * M-16 Rifle Sharpshooter Qualification Badge * Hand Grenade Expert Qualification Badge * 81 MM Expert Qualification Badge * Army Service Ribbon 12. The National Personnel Records Center (NPRC), letter, dated 22 June 2000 and the Texas Department of Criminal Justice letter, dated 13 April 2000, shows when the applicant requested for his records, he was an inmate in Texas. He was accepted into a job placement program sponsored by the Governor of the State of Texas to prepare him to become gainfully employed upon release. The applicant contacted the NPRC for a copy of his DD Form 214, which was needed to sign up for the program. 13. The applicant provides Congressman R_ W_ Letter, dated 18 November 2020, which requested the Army Review Boards Agency review the documents sent to his office in regard to the applicant. It states the applicant has a concern within ARBA jurisdiction and makes reference to being homeless. 14. The Army Review Boards Agency, Case Management Division letter, dated 23 July 2021, shows, the letter was addressed to the applicant to inform him that in order for the Board to the ABCMR to consider his application, he must provide a copy of his medical documents that support his issue of PTSD, TBI, and mental health. The case was placed on hold until 23 August 2021, to give him the opportunity to provide the requested documents. The applicant did not respond. 15. The applicant requests an upgrade. The applicant indicated post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health conditions are related to his request. He states and he was in the early stages of PTSD and deterioration of his aortic valve. He was having constant blackouts, severe disciplinary problems, and recurring nightmares. a. His record shows he enlisted in the Regular Army at the age of 19 years old. He attended the basic airborne course and the Ranger Indoctrination Program and determined to be disqualified due to medical reasons b. In regard to his contention, he suffered from PTSD, TBI, and mental health issues: (1) His record does not show any evidence he suffered from a mental health condition during his period of military service. The Case Management Division requested medical documents from the applicant to support his contention of suffering from mental health issues and the applicant did not respond. (2) The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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, 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 or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. c. AR 635-200 states a chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. Soldiers pending separation under chapter 10, were not required to undergo a medical examination, but may request one in writing. Soldiers who requests a medical examination will be required to undergo a mental status evaluation. d. According to the MCM, Article 86, UCMJ –– Absence Without Leave, for more than 30 days, included a punitive discharge. 16. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 26 April 1989 discharge characterized as under other than honorable conditions. He states: “I believe that my character was wrong. I was early stage PTSD and deterioration of my aortic valve. I was having black-outs, severe disciplinary problems, and recurring nightmares.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 4 November 1987 and was discharged under other than honorable conditions on 26 April 1989 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (22 January 1988): Discharge for the Good of the Service. c. No medical documentation was submitted with the application. Because of the period of service under consideration, there are no encounters in AHLTA. d. Part II of his Personnel Qualification Record (DA Form 2-1) shows he was absent without leave (AWOL) form 7 September 1988 thru 27 September 1988 at which time he surrendered to authorities in California and flew back to Ft. Bragg, NC on his own. The DA 2-1 shows he went AWOL gain on 30 September 1988 at which time he was dropped from rolls and declared a deserter. On 9 March 1989, he was apprehended by civilian authorities in Beaumont, TX and returned to military control. e. The Charge Sheet (DA Form 458) shows he was charged with AWOL from on or about 7 September 1988 thru on or about 25 September 1988; and from on or about 30 September 1988 thru on or about 9 March 1989. f. On 15 March 1989, the applicant voluntarily requested discharge for the good of the service under chapter 10 of AR 635-200. His request was approved by the battalion commander on 30 March 1989. g. Review of his records in JLV shows no diagnosed medical condition. h. There is no evidence the applicant had a mental health condition or other medical condition which would have contributed to or would now mitigate the UCMJ violations which resulted in his request for discharge. Furthermore, there is no evidence the applicant had any medical condition prior to his discharge which would have failed the medical retention standards of chapter 3, AR 40-501, and would therefore have been a cause for referral to the Disability Evaluation System. i. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. 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 frequency and nature of the misconduct and the reason for separation. The Board reviewed and concurred with the opinion of the Agency Behavioral Health Advisor finding that neither a discharge upgrade nor referral of his case to the Disability Evaluation System is warranted. Based on a preponderance of evidence available for review, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 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 met the standards of acceptable conduct and performance of duty for Army personnel or was 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 honorable conditions, 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 members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. 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. e. Medical examinations under chapter 10 are not required, but may be requested by Soldiers in writing. A Soldier to be processed under the provisions of chapter 10 who requests a medical examination will be required to undergo a mental status evaluation. 3. Per Manual for Courts-Martial, Article 86, UCMJ –– Absence Without Leave, for more than 30 days, included a punitive discharge. 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. Standards for review should 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. 5. 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// ABCMR Record of Proceedings (cont) AR20210008179 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1