IN THE CASE OF: BOARD DATE: 14 April 2022 DOCKET NUMBER: AR20210015064 APPLICANT REQUESTS: * upgrade his under other than honorable conditions discharge to honorable * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * Table of Rated Disabilities * Pension Claim * Compensation Claim * List of Disabilities FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 is requesting an upgrade in his discharge status. While serving, he endured multiple jump accidents. He began having anxiety and depression. It became so severe and overwhelming he felt he had no choice but to leave, abandoning his enlistment. He suffers from health conditions both mentally and physical that stem from injuries/accidents during his enlistment. He is seeking an upgrade and access to health care for those conditions. He suffered from untreated post-traumatic stress disorder (PTSD) that stemmed from multiple jump accidents that occurred during his time in the service. 3. The applicant provides the following documents for the Board's consideration: a. A table of rated disabilities, the following disabilities and their status: * left knee tendonitis, 10 percent * PTSD, not service connected * right knee strain * sleep apnea * lumbosacral strain * right ankle condition, not service connected * major depressive disorder, mild * left lower extremity radiculopathy b. A document entitled "Your Pension Claim," which shows the documents filed for his claim. c. An eBenefits printout, which shows he had no rated disabilities to display. 4. On 9 February 1976, the applicant enlisted in the U.S. Army, at the age of 17 years, for a period of 3 years. There was no evidence of a parental consent waiver in the applicant's service record. His DA Form 2-1 (Personnel Qualification Record) shows the applicant entered basic training on 17 February 1976 and advanced individual training on 26 April 1976. On 10 June 1976, he attended the basic airborne course. 5. On 10 July 1977, his duty status was changed from AWOL to confined by military authorities. On 13 July 1977, his duty status was changed from confined by military authorities to AWOL. On 13 July 1977, his duty status was changed from AWOL to dropped from rolls (DFR). On 19 August 1977, his duty status was changed from DFR to present for duty (PDY). 6. Sometime after 19 August 1977, a determination of lost time was completed, which shows it was determined the applicant had lost time from 18 June 1977 to 19 August 1977. 7. On 29 August 1977, the applicant completed a Request and Authority for Leave requesting excess leave from 29 August 1977 for an indefinite period of time. 8. On 30 August 1977, a disposition form, subject verification of AWOL/DFR was completed and shows the applicant went AWOL on 18 June 1977 and was DFR on 16 August 1977. 9. The applicant's service record was void of a charge sheet and request for discharge; however, a disposition form shows on 31 August 1977, his commander, the personnel control facility commander, and battalion commander all recommended approval of his request for discharge with an under other than honorable conditions discharge. He had gone AWOL due to family problems and stated a return to duty would result in a pursuit of a discharge. 10. The approval authority memorandum was not available for the Board's consideration; however, his DD Form 214 (Report of Separation from Active Duty) shows: a. Authority and Reason: Chapter 10, Army Regulation 635-200 ( Personnel Separations – Enlisted Personnel). b. Character of service: Under Other Than Honorable Conditions. c. Effective date: 19 September 1977. d. Date entered active duty: 9 February 1976. e. Net service this period: 1 year, 5 months, and 12 days. f. Decorations, Medals, Badges: Parachutist Badge, Marksman Marksmanship Qualification Badge (Rifle). g. Remarks: 59 days lost from 18 June 1977 through 9 July 1977, and 13 July 1997 through 18 August 1977; 22 days excess leave from 29 August 1977 thru 19 September 1977. 11. Army Regulation 635-200 provides that Soldiers charged with Uniform Code of Military Justice violations for which a punitive discharge was a punishment could voluntarily request separation in lieu of trial by court-martial. The Manual for Courts- Martial, in effect at the time, showed a punitive discharge was among the maximum punishments for AWOL over 30 days. 12. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 13. 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. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of the Department of Veterans Affairs Joint Legacy Viewer indicates the applicant completed the Compensation and Pension examination process. Effective 2 August 2021, the following conditions were found to be service connected but received a 0% rating: limited flexion of knee (bilateral), paralysis of sciatic nerve, and lumbosacral or cervical strain. His PTSD was found to not be service connected. b. There is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. * 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 found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. 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, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined 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 : : : 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. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 4. The Manual for Courts-Martial, Table of Maximum Punishments showed a punitive discharge was a punishment allowed for AWOL over 30 days. 5. 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. 6. 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; 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. 7. 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. 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, 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. 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// ABCMR Record of Proceedings (cont) AR20210015064 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1