IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210005108 APPLICANT REQUESTS: upgrade of his under other than honorable discharge to a general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 was given an under other than honorable conditions discharge over 15 years. He was experiencing mental problems due to a death in his family. He should have been given a general discharge. He believes the record to be unjust because he was not given a proper evaluation for mental problems. He is a born again Christian with goals in life. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 20 August 1986 for 4 years. He held military occupational specialty (MOS) 63E (Parachute Rigger) and later 77F (Petroleum Supply Specialist). b. On 2 November 1987, he accepted non judicial punishment (NJP) under Article 15 under the Uniform Code of Military Justice (UCMJ), at Fort Campbell, KY for failing to go at the time prescribed to his appointed place of duty and disobeying an order. His punishment consisted of reduction to private two (PV2)/E-2 (suspended), forfeiture of $100.00 per month for one month (suspended and extra duty. c. On 10 May 1988, he accepted NJP under Article 15, at Fort Campbell, for wrongfully being present in the barracks room which the area was exclusively occupied and utilized by personnel of the opposite sex on two occasions. His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $335.00 pay per month for 2 months (suspended), and extra duty. d. On 27 June 1988, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with one specification of wrongful use of marijuana. e. Also on 27 June 1988, additional charges were preferred. His DD Form 458 shows he was charged with: * four specifications of failing to go at the time prescribed to his appointed place of duty * one specification of wrongfully and unlawfully utter two checks and did not or would not have sufficient funds for payment of said checks f. On 28 June 1988, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service-in lieu of trial by court- martial. In his request for discharge, he indicated that: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans administration(VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he submitted a statement in his own behalf g. In his statement he stated he wanted to get out on a Chapter 10 for the good of the Army. He had a long history of charges against him and it looks bad for his defense. He would like to start over again as a civilian. His mother works but doesn’t have enough money and time to take care of his son (3-year-old). He really needed all of his benefits, if it’s not too much to ask. h. On 5 July 1988, his immediate commander recommended approval of an under other than honorable conditions discharge. His chain of command opined “the quicker we get this guy out, the better everyone will be served.” i. On 12 July 1988, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. j. Orders 133-238, dated 13 July 1988, 101st Airborne Division (Air Assault), Fort Campbell, reassigned him for separation processing and discharged him, effective date 15 July 1988. k. He was discharged from active duty on 15 July 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with AR 635-200, chapter 10, (in lieu of trial by court-martial) with an under other than honorable conditions characterization of service. He completed 1 year, 7 months, and 15 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Air Assault Badge. l. On 15 March 1996, the Army Discharge Review Board (ADRB) reviewed his discharge and denied his appeal. The ADRB concluded his discharge was proper and equitable. m. On 11 March 2002, 8 October 2004, 8 March 2005, and 9 November 2005, the staff of Army Review Boards Agency, by letter(s), informed the applicant that his records had been requested but not located and no action could be taken on his requests until his record became available or until he furnished documentation that would support his request. n. On 26 April 2021, a staff member of the Army Review Boards Agency requested the applicant provide a copy of the medical documents that support his issue of Mental Health. No response as of 7 June 2021. o. His Certification of Military Service certificate, dated 9 February 2006, shows he served from 20 August 1986 to 15 July 1988 and his service was terminated by an other than honorable discharge. 4. By regulation (AR 635-200), 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. A discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant has been diagnosed by the VA with a variety of substance use disorders and Unspecified Depressive Disorder. However, the applicant is not service connected for a behavioral health condition; rather, physical ailments for treatment purposes. At this time documentation is insufficient to determine whether or not the applicant had a psychiatric condition contributing to the misconduct. Accordingly, there is no medical mitigation. b. The applicant was discharged on 15 July 1988 under a Chapter 10, In Lieu of Trial by Court Martial, with an Under Other than Honorable characterization. The basis for separation was wrongful use of marijuana, four specifications of failing to go to his appointed place of duty, and one specification of wrongful and unlawful utterance of two checks he couldn’t pay. Previous misconduct included being wrongfully present in the barracks room of a female barracks on two occasions in 1988 and failing to go to his appointed place of duty and disobeying an order in November 1987. The applicant is requesting an upgrade to General asserting “mental problems due to a death in his family” fueled the misconduct. c. In 1996, the applicant applied to the ADRB requesting an upgrade noting inequity, asserting he only had one disciplinary action, and desire for a government job to support his family. The Board determined his discharge was proper and equitable denying relief. In 2002, 2004, and 2005, the applicant’s ABCMR applications were closed due to a lack of documentation. d. Due to the period of service, electronic active duty medical records are void. e. The applicant is service connected for treatment purposes for medical conditions. In June 2000, the VA met with the applicant while he was incarcerated to discuss housing options at release; reason for incarceration unknown. In June 2005, the applicant was seen in the ER noting depression and auditory hallucinations over the prior few days. The applicant noted a year prior he was seen in a non-VA ER for similar symptoms and hospitalized with non-VA psychiatric care since then. The applicant was released as low risk and given community resources. In May 2016, the applicant went to the VA requesting substance and MST treatment; the applicant did not provide information for MST. The applicant noted he was discharged from service after auditory hallucinations caused him to be disruptive, frequently late to formation, and threaten officers. The applicant reported receiving non-VA care and SSDI for depression and anxiety. The applicant reported cocaine use beginning at age 10 with regular in 1986. The applicant was diagnosed with Cocaine, Cannabis, Alcohol, and Other Psychoactive Substance Use Disorders and Unspecified Depressive Disorder. Due to the active substance use, a diagnosis related to psychosis could not be made; psychosis may have been caused by the drug use rather than a psychiatric condition. In February 2021, the applicant requested services after release from prison; reason for incarceration unknown. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, and the reason for separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical review finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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 :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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect provides 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. b. Paragraph 3-7a of the regulation currently in effect 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. c. Paragraph 3-7b of the regulation currently in effect 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. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which 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. 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 based on 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. 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) AR20210005108 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1