IN THE CASE OF:
BOARD DATE:  11 February 2022
DOCKET NUMBER:  AR20210010123 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded.  Additionally, he requests a personal appearance with the Board, via a video or telephone conference call. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 19 September 2020

•Department of Veterans Affairs (VA) records, listed but not included



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he served in Germany for years in different countries.During a previous enlistment in 1983, while attending the Primary Non-CommissionedOfficer’s Course (PNCOC) at Fort Ord, CA, he suffered a traumatic brain injury (TBI)due to an explosion caused by negligence of the cadre.  He cannot control what theydid to cover this up.  He could not march, hear, or perform his duties to 110 percent (%).

3.Following a brief period of service in the Arkansas Army National Guard, theapplicant enlisted in the Regular Army on 3 February 1982.

4.The applicant was honorably discharged on 2 February 1985, by reason of expirationterm of service (ETS).  The DD Form 214 (Certificate of Release or Discharge fromActive Duty) he was issued shows he was credited with completing three years of netactive service this period.  During this period of service, he completed the four weekPNCOC at Fort Ord, CA.

5.The applicant reenlisted in the Regular Army on 16 May 1985.  He served throughseveral periods of enlistment and extension, attained the rank/grade of sergeant(SGT)/E-5, and served in the Federal Republic of Germany from 26 September 1985through 7 November 1987.

6.The applicant’s service records contain the following DA Forms 4187 (PersonnelAction) that show his status was changed as follows:

•from present for duty to absent without leave (AWOL), on 8 August 1988

•from AWOL to dropped from unit rolls (DFR), on 7 September 1988

•from DFR to attached/present for duty on 5 July 1989, when he wasapprehended by civilian authorities and returned to military control



7.The applicant signed a statement declining a separation examination on 7 July 1989.

8.Court-martial charges were preferred against the applicant on 13 July 1989, forviolations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form 458(Charge Sheet) shows he was charged with absenting himself from his unit at Fort Polk,LA, from on or about 8 August 1988 through on or about 5 July 1989.  He subsequentlysigned an admission to AWOL statement the same day.

9.The applicant consulted with legal counsel on 13 July 1989 and was advised of thebasis for the contemplated trial by court-martial; the maximum permissible punishmentauthorized under the UCMJ; the possible effects of a bad conduct or dishonorabledischarge; and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

b.He was further advised that there is no automatic upgrading nor review by anyGovernment agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished for a review of his discharge.  He realized that the act of consideration by either board does not imply that his discharge would be upgraded. 

c.He was advised he could submit any statements he desired in his own behalf.He elected not to submit a statement. 

10.The applicant was placed on involuntary excess leave on 13 July 1989, pendingapproval of his request for discharge in lieu of trial by court-martial.  He acknowledgedthat if his request was approved, the discharge and all entitlements due would bemailed to him at the address provided.

11.The applicant's commander recommended approval of the applicant's request fordischarge on 18 July 1989, under the provision of Army Regulation 635-200,
Chapter 10, in lieu of trial by court-martial, and recommended that he be issued aUOTHC discharge.

12.The separation authority approved the applicant's request for discharge on 27 July1989, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial bycourt-martial, and directed the applicant's reduction to the lowest enlisted grade and theissuance of a UOTHC discharge.

13.The applicant was discharged on 13 October 1989, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 hewas issued confirms he was discharged in the lowest enlisted grade and his servicewas characterized as UOTHC.  He was credited with completing three years, fivemonths, and one day of net service this period.

14.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

15.The applicant does not provide; and his available record does not containsupporting documentation that confirms he suffered a TBI, or that shows he was treatedfor a head injury or any other injuries related to an explosion.

16.The applicant states he provides his VA Records but none were included forconsideration.

17.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, and clemency determination guidance.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on mental health conditions, including post-traumaticstress disorder (PTSD).  The Veteran’s testimony alone, oral or written, may establishthe existence of a condition or experience, that the condition or experience may have









existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 18. 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 13 October 1989 discharge characterized as under other than honorable conditions.  He states he sustained a traumatic brain injury (TBI) in 1983 in a training accident. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case.  The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 16 May 1985 and was discharged under other than honorable conditions on 13 October 1989 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Discharge for the Good of the Service.   c. There was no medical document 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 8 August 1988 thru 4 July 1989.  He was apprehended by civilian authorities in .  The Charge Sheet (DA Form 458) shows he was charged with AWOL from on or about 8 August 1988 thru on or about 5 July 1989. e. On 7 July 1989, the applicant declined a separation medical examination.  On 13July 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 brigade commander on 27 July 1989.  f. There is no evidence the applicant had a mental health condition, TBI relatedsequelae, or other medical condition which would have contributed to or would now mitigate the UCMJ violation which resulted in his 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.     
g.Review of his records in JLV shows he had been diagnosed with non-serviceconnected generalized anxiety disorder and depression.  It also shows two service connected disabilities; impaired hearing (50%) and tinnitus (10%). 
h.Under liberal consideration polices, the applicant’s later diagnosed conditions ofdepression and generalized anxiety disorder do not mitigate his period of absence without leave.  In addition, there is no evidence these conditions are related to his military service in the 1980’s.  It is the opinion of the Agency medical advisor that neither an upgrade of his discharge nor a referral to the DES is warranted. 

BOARD DISCUSSION: 

1.The applicant's request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

2.The Board carefully considered the applicants request, supporting documents,evidence in the records, a medical review and published DoD guidance for liberalconsideration of discharge upgrade requests.  The Board considered the applicant'sstatement, his record of service, the frequency and nature of his misconduct, and thereason for his separation.  The Board considered the medical records and the reviewand conclusions of the reviewing official.  The Board concurred with the medicalreviewer finding insufficient evidence of in-service mitigating factors to overcome themisconduct.  The applicant provided no evidence of post-service achievements orletters of reference in support of a clemency determination.  Based on a preponderanceof evidence, the Board determined that the character of service the applicant receivedupon separation was not in error or unjust.

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 

: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. 




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.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.  It is not an investigative body.The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to ahearing before the ABCMR.  The Director or the ABCMR may grant a formal hearingwhenever justice requires.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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 provided, in pertinent part, that a member who had committed anoffense 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 UOTHC discharge was normally considered appropriate. 

4.The Secretary of Defense directed the Service Discharge Review Boards (DRBs)and Service Boards for Correction of Military/Naval Records (BCM/NRs), on3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSDcriteria, detailed medical considerations, and mitigating factors when taking action onapplications from former service members administratively discharged UOTHC and whohave been diagnosed with PTSD by a competent mental health professionalrepresenting a civilian healthcare provider in order to determine if it would beappropriate to upgrade the characterization of the applicant's service.

5.The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness)provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February2016 [Carson Memorandum].  The memorandum directed the BCM/NRs to waive thestatute of limitations.  Fairness and equity demand, in cases of such magnitude that aVeteran's petition receives full and fair review, even if brought outside of the time limit.Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefitof the application of the Supplemental Guidance, shall be, upon petition, granted denovo review utilizing the Supplemental Guidance.

6.The Under Secretary of Defense (Personnel and Readiness) provided clarifyingguidance to Service DRBs and Service BCM/NRs on 25 August 2017 [KurtaMemorandum].  The memorandum directed them to give liberal consideration toveterans petitioning for discharge relief when the application for relief is based in wholeor in part on matters relating to mental health conditions, including PTSD, traumaticbrain injury (TBI), sexual assault, or sexual harassment.  Standards for review shouldrightly consider the unique nature of these cases and afford each veteran a reasonableopportunity for relief even if the sexual assault or sexual harassment was unreported, orthe mental health condition was not diagnosed until years later.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on those conditions or experiences.  The guidancefurther 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 butrather 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 militaryservice.  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. 

7.The Under Secretary of Defense (Personnel and Readiness) issued guidance toService DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], regardingequity, injustice, or clemency determinations.  Clemency generally refers to reliefspecifically granted from a criminal sentence.  BCM/NRs may grant clemencyregardless of the court-martial forum.  However, the guidance applies to more thanclemency 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 frominjustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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. 

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