IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210013815 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration of his previous requests to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two copies of National Guard Bureau (NGB) Form 65 (Honorable Discharge Certificate) * NGB Form 22 (Report of Separation and Record of Service) FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR1999031362, on 5 April 2000, and AR20090009127, on 10 September 2009. 2. The applicant states, in effect, after his discharge from the Regular Army, the applicant served honorably for 13 years in the Ohio Army National Guard (OHARNG). A year before he initially entered active duty, his father died, and his now-widowed mother had a number of problems with the applicant's siblings. Subsequent to his discharge, the applicant received diagnoses for "Panic Separation Disorder" and "Separation Anxiety Disorder"; he is confident he has suffered from these illnesses his entire life. The applicant adds that upgrading his character of service is, for him, a matter of honor, and he wishes to correct this blemish on his otherwise blemish-free life. 3. The applicant's service records show: a. On 15 July 1981, the applicant enlisted into the Regular Army for 4 years; he was 18 years old. Upon completion of initial entry and airborne training, and the award of military occupational specialty 11B (Infantryman) with Special Qualification Identifier "P" (Parachutist), orders assigned the applicant to an infantry unit at Fort Stewart, GA, and he arrived at his new unit, on 19 November 1981. At some point prior to 24 December 1981, the applicant's leadership promoted him to private (PV2)/E-2. b. On 24 December 1981, the applicant Fort Stewart unit reported him as absent without leave; on 15 January 1982, the applicant returned to military control at his unit. On 21 January 1982, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for having been AWOL from 24 December 1981 until 15 January 1982 (22 days); punishment included a suspended reduction to private (PV1)/E-1. c. Effective 27 April 1982, the applicant's Fort Stewart chain of command promoted him to private first class (PFC)/E-3. Orders subsequently reassigned the applicant to an infantry company on Fort Wainwright, AK, and he arrived at the infantry company, on or about 31 January 1983. On 2 February 1983, the applicant's Fort Wainwright unit reported him as AWOL and, on 3 March 1983, dropped him from unit rolls. d. On 12 December 1983, the applicant surrendered himself to military authority near his hometown; orders reassigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY, and he arrived on 12 December 1983. e. On 15 December 1983, the PCF preferred court-martial charges against the applicant for AWOL from 2 February until 12 December 1983 (313 days). f. On 15 December 1983, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial, under chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he verified no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charges, and he elected not to submit a statement in his own behalf. On 15 December 1983, the applicant departed Fort Knox on excess leave. g. On 28 December 1983, the separation authority approved the applicant's request and ordered the applicant's under other than honorable conditions discharge; additionally, the separation authority directed the applicant's reduction from PFC to private (PV1)/E-1. On 19 January 1984, orders discharged the applicant accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 7 months and 4 days of his 4-year enlistment contract, with lost time from 19811224 through19820114 and 19830202 through 19831211. The DD Form 214 also lists the awards of the Army Service Ribbon, Parachutist Badge, and two marksmanship qualification badges. h. On 12 April 1999, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) He argued, "Mistakes made as a child should be allowed to be corrected as an adult; one should only pay for a mistake for so long." In support of his request, the applicant submitted a copy of the approved waiver for his entry into the OHARNG, in which an OHARNG medical company commander wrote, "I have interviewed the above- named individual and feel he has seen how his past mistakes have a way of haunting his future. I believe he has made much progress in his life since his discharge from the U.S. Army, and (I) would be willing to accept him in (ARNG unit)." The applicant additionally indicated someone had told him about automatic upgrades, and the applicant mentioned he had been having personal problems prior to going AWOL; (the applicant's available service record does not include documents reflecting these arguments). (2) On 5 April 2000, the Board considered the applicant's evidence, allegations and information, along with the applicant's service record; the Board determined the applicant had failed to submit sufficient relevant evidence to show the existence of a probable error or injustice. The Board added that there are no automatic provisions for upgrading administrative discharges, and the applicant's record did not indicate the applicant was experiencing personal problems of such a nature as to justify his AWOL. i. On 6 May 2009, the applicant requested reconsideration of his upgrade request, noting that he had served with distinction in the OHARNG, and the OHARNG had honorably discharged him. On 10 September 2009, the Army Review Boards Agency (ARBA) administratively closed the applicant's request, stating more than 1 year had passed since the Board's original decision; as such, the applicant's request did not meet regulatory criteria for a reconsideration. j. On 8 November 2021, ARBA asked the applicant to provide copies of medical documentation that showed and supported the applicant's behavioral health diagnoses. The applicant did not submit a response. 4. The applicant requests the Board's reconsideration of his earlier upgrade requests, and he points out, subsequent to his discharge, he served honorably in the OHARNG. Further, he had had personal problems prior to going to AWOL, and, following his discharge, he received diagnoses for behavioral health conditions that, he maintains, he has had his entire life and, in effect, must have contributed to the misconduct that led to his discharge. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was among the maximum punishments, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. The Manual for Courts-Martial then in effect stated the punishment for violation of Article 86 (AWOL for 30 or more days) included a punitive discharge. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 5. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of his service record indicates he declined a medical examination prior to his separation. The applicant asserts he has a diagnosis of Panic Separation Disorder also called Separation Anxiety Disorder. No medical documentation was provided for review. A review of JLV indicates he has not been evaluated or treated in the VA system. He does not have a service connected disability rating. 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 are no documented psychiatric conditions at the time of his service to consider with respect to mitigation of his misconduct. If subsequent documentation of an anxiety disorder is provided, neither Panic Disorder nor Separation Anxiety Disorder would be considered a mitigating factor for the misconduct that led to his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is no documentation to support a behavioral health diagnosis at the time of his discharge. There are no documented psychiatric conditions at the time of his service to consider with respect to mitigation of his misconduct. If subsequent documentation of an anxiety disorder is provided, neither panic disorder nor Separation Anxiety Disorder would be considered a mitigating factor for the misconduct that led to his discharge. The Board determined there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 2. The Board agreed there is insufficient evidence of in-service mitigation to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post- service accomplishments or character letters of support to show honorable conduct that might have mitigated the discharge characterization. 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. Therefore, relief was denied. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR1999031362, on 5 April 2000, and AR20090009127, on 10 September 2009. 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): N/A REFERENCES: 1. Army Regulation (AR) 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to give the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to put his/her request in writing, and certify that he/she had been counseled, understood his/her rights, could, potentially, receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 2. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed Article 86 (AWOL for more than 30 days) included a punitive discharge. 3. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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 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. 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) AR20210013815 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1