IN THE CASE OF: BOARD DATE: 19 May 2022 DOCKET NUMBER: AR20210017209 APPLICANT REQUESTS: an upgrade of the service characterization associated with his U.S. Army Reserve (USAR) discharge from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 19 August 1989 * DA Form 5398 (Civilian Performance Rating), covering the period 5 May 1991 through 27 February 1992 * DA Form 2166-7 (Non-Commissioned Officer (NCO) Evaluation Report, covering the period September 1991 thru June 1992 * DA Form 638-1 (Recommendation for Award), undated * Orders 51-02, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA on 18 August 1992 * DA Form 2446 (Request for Orders), dated 1 September 1992 * Orders 54-02, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA on 1 September 1992 (Revocation of Orders 51-02) * Orders 54-03, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA on 1 September 1992 * Orders 340-012, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA on 6 December 1995 * DD Form 257A (General Discharge Certificate), dated 26 December 1995 * Miscellaneous Documents from Service Record, dated between 27 February 1992 and 18 August 1992 * Orders P12-280099, issued by USAR Personnel Command, on 4 December 2002 * DD Form 363A (Certificate of Retirement), dated 27 February 2003 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 he reenlisted on 18 August 1989 for 6 years. His expiration term of service was 18 August 1995, which is four months prior to his discharge orders dated 6 December 1995. Orders 54-03, dated 1 September 1992, are in violation of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), which provides for reasonable commuting within a 100-mile radius. It will not exceed 3 hours of travel time one way by car under average traffic, weather, and road conditions (Wendell, NC to Fort Belvoir, VA). 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. Having had prior service in the U.S. Air Force, the applicant enlisted in the USAR on 8 February 1972. He served through several enlistments and attained the rank of master sergeant. He reenlisted in the USAR on 18 August 1989 for 6 years. 5. Orders 54-03, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA, on 1 September 1992, reassigned the applicant from Fort Pickett, VA, to Fort Belvoir, VA, by reason of voluntary transfer, effective 1 September 1992. 6. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 7. Orders 340-012, issued by Headquarters, 310th Theater Army Area Command, Fort Belvoir, VA, on 6 December 1995, discharged the applicant from the USAR, under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) effective 26 December 1995, with the issuance of a General Discharge Certificate. 8. The applicant provides miscellaneous documents from his service record to include a retirement certificate that shows he was retired from the Army on 27 February 2003. 9. In the processing of this case, an advisory opinion was obtained on 6 May 2022 from the Chief, Army Service Center, U.S. Army Human Resources Command, Fort Knox, KY. The advisory official opined it could not be determined if the applicant’s type of discharge (general) was correct. 10. The applicant was provided a copy of this advisory opinion on 10 May 2022, to provide him an opportunity to comment and/or submit a rebuttal. He did not submit a statement. 11. The Board should consider the applicant's statement for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. The applicant checked the block for PTSD as an issue related to his upgrade request. No medical documentation of any psychiatric conditions was provided for review. b. A review of the Department of Veterans Affairs' Joint Legacy Viewer indicates the applicant has not been evaluated or treated in the Department of Veterans Affairs' system. He does not have a service connected disability rating. c. There is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of his misconduct. In addition, there is no information regarding the behavior that resulted in his general discharge, thus no opine regarding mitigation could be provided even if there was a documented psychiatric condition. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. * Did the condition exist or experience occur during military service? No. * Does the condition or experience actually excuse or mitigate the discharge? Not applicable. * Does the condition or experience outweigh the discharge? Not applicable. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, 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, and the character of service he was given when he was discharged from the USAR in 1995. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board found the applicant’s overall record of service, to include years of service as a senior noncommissioned officer, does not support the character of service he received in 1995. Based on a preponderance of evidence, the Board determined the character of service the applicant received in 1995 should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :GT :KC :RD GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Orders 340-012 issued by Headquarters, 310th Theater Army Area Command, on 6 December 1995 to show the type of discharged he received was honorable and by issuing him an Honorable Discharge Certificate. 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 135-178 sets forth the basic authority for the separation of enlisted Reserve Component personnel. a. Paragraph 2-9a provides that an honorable characterization of service is appropriate when the quality of the Soldier'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 2-9b provides that a general (under honorable conditions) characterization of service is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. Paragraph 2-9c provides that service may be characterized as under other than honorable conditions (UOTHC) when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, 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 and 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. 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 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. 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 Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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// DEPARTMENT OF THE ARMY ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RBA 3 March 2023 MEMORANDUM FOR Case Management Division, Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for , AR20210017209 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings in which the Board recommended granting the applicant’s request. I have reviewed the evidence presented, findings, conclusions, and Board member recommendations. Based upon the lack of information available related to the misconduct resulting in the applicant’s separation, I overturn the board’s recommendation. The application submitted by the individual concerned is denied. BY ORDER OF THE SECRETARY OF THE ARMY: 03/03/2023 Encl CF: ( ) OMPF