IN THE CASE OF:   
BOARD DATE:  11 February 2022 
DOCKET NUMBER:  AR20210010124 


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 20 April 2020



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:

a.He served five years of honorable service and received an honorable dischargefor his first enlistment.  He was a superb Soldier prior to this discharge and served two years overseas with eight months in Southwest Asia.  During his second enlistment, he developed undiagnosed depression due to spousal abuse.  He was 22 years old and unable to handle this so he just walked off the base and was reported as absent without leave (AWOL). 

b.He never reported the abuse because he was embarrassed.  He is nowremarried with three children and is a licensed healthcare administrator.  He has a bachelor’s degree, has attended law school, and owns his own successful business.  His depression from the abuse was diagnosed in 2011.  He is asking for clemency as it has been 25 years and has been a heavy emotional burden. 

3.The applicant enlisted in the Regular Army on 31 January 1990.  He reenlisted in theRegular Army on 22 July 1993.

4.The applicant served in Southwest Asia from on or about 24 April 1994 through on orabout 3 September 1994.

5.The applicant’s record is void of a separation packet containing the specific facts andcircumstances surrounding his discharge processing.  However, his DD Form 214(Certificate of Release or Discharge from Active Duty) shows he was discharged on5 April 1995, under the provisions of Army Regulation 635-200 (Personnel Separations–Enlisted Personnel), paragraph 14-12b, for misconduct.  He was credited with fiveyears and two months of net active service, and his service was characterized as underhonorable conditions (general).

6.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or 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 existedduring or was aggravated by military service, or that the condition or experience mayexcuse or mitigate the discharge.

7.MEDICAL REVIEW:

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. Although the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service, he was seen in May 2006 for a military physical for OCS. He denied any psychological symptoms to include depression and anxiety. He was found to meet accession standards. His hardcopy military medical record was not available for review. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. The applicant asserts he had depression but did not provide any medical documentation. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no behavioral health diagnosis to consider with respect to mitigation of the misconduct that led to his discharge. In addition, there is no information regarding the misconduct that led to his discharge thus a medical opinion can’t be provided with respect to mitigation even if there was a documented psychiatric condition. 

BOARD DISCUSSION: 

1.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 limited medical records and the reviewand conclusions of the reviewing official.  The applicant provided no 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 ofservice the applicant received upon separation was not in error or unjust.

2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to depict the militaryservice of the applicant more accurately.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:     :    :         GRANT FULL RELIEF 

:X    :X   :X        GRANT PARTIAL RELIEF 

:     :    :         GRANT FORMAL HEARING 

:     :    :         DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION: 

Except for the correction addressed in Administrative Note(s) below, the Board found 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. 

ADMINISTRATIVE NOTE(S): 

A review of the applicant's record shows his DD Form 214, for the period ending 5 April 1995, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend item 18 (Remarks) of the DD Form 214 by adding the entry, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 900131 UNTIL 930721." 

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 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 14 of this regulation established policy and prescribed procedures forseparating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 

3.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, 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.

4.The Under Secretary of Defense for Personnel and Readiness provided clarifyingguidance to Service DRBs and Service BCM/NRs on 25 August 2017.  Thememorandum directed them to give liberal consideration to veterans petitioning fordischarge relief when the application for relief is based in whole or in part on mattersrelating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexualassault, or sexual harassment.  Standards for review should rightly consider the uniquenature of these cases and afford each veteran a reasonable opportunity for relief even ifthe sexual assault or sexual harassment was unreported, or the mental health conditionwas not diagnosed until years later.  Boards are to give liberal consideration to Veteranspetitioning for discharge relief when the application for relief is based in whole or in parton those conditions or experiences.  The guidance further describes evidence sourcesand criteria and requires Boards to consider the conditions or experiences presented inevidence 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. 

5.The Under Secretary of Defense for Personnel and Readiness issued guidance toService DRBs and Service BCM/NRs on 25 July 2018, regarding equity, injustice, orclemency determinations.  Clemency generally refers to relief specifically granted from acriminal 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, whichmay be warranted on equity or relief from injustice 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. 

//NOTHING FOLLOWS//