IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210016057 APPLICANT’S REQUEST: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable and to appear before the Board. 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 (USC), 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 made mistakes in the military and he has changed for the better. He would like to have the benefits of an honorable discharge. The applicant notes post-traumatic stress disorder (PTSD) as related to his request as a contributing and mitigating factor in the circumstances that resulted in his separation. 3. The applicant enlisted in the Regular Army for 4 years on 3 February 1987 with an immediate reenlistment on 2 February 1987. 4. The applicant received a Letter of Reprimand on 13 November 1986 for driving with a blood alcohol test result of .10 percent or more on 12 October 1986 5. The applicant received the following four counseling's: * 18 March 1988, for failure to be present for a pre-inspection re-inspection of his room, * 18 March 1988, for being absent without leave (AWOL) by not returning to his place of duty * 19 March 1988, for being absent from the company area and not present for a first sergeant's inspection * undated, for repeatedly being placed on AWOL status; a prior nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice; and a severe lack of motivation 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * on 18 November 1987, for being AWOL from on or about 9 November 1987 until on or about 10 November 1987 * on 30 March 1988, for being AWOL from on or about 21 March 1988 until on or about 22 March 1988 * on 20 May 1988, for willfully damage government property on 9 May 1988 by throwing a brick through a window 7. The applicant's immediate commander notified the applicant on 2 June 1988 of his intent to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14 for a pattern of misconduct. 8. The applicant consulted with legal counsel on 14 June 1988 and was advised of the basis for the contemplated separation action; the possible effects of a discharge under with either an under honorable conditions (general) or an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 14, for the misconduct, pattern of minor infractions. He acknowledged he understood that if he was discharged with a general discharge, he could expect to encounter substantial prejudice in civilian life. b. He understood that if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. c. The applicant was advised he could submit any statements he desired in his own behalf. He indicated he would submit a statement; however, the record does not contain any indication one was submitted. d. The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c. The battalion commander recommended approval; however, the separation authority’s approval is not of record. 9. The applicant was discharged on 24 June 1988 under the provisions of Army Regulation 635-200, Chapter 14, for misconduct-patterns of misconduct. The DD Form 214 he was issued shows: * he was discharged in the lowest enlisted grade * his service was characterized as under honorable conditions (general) * he had 5 years, 1 month, 17 days of net service this period * he served overseas for 2 years * he had 5 days of lost time * his awards are listed as the Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Qualification Badge with Hand Grenade bar, and the Marksman Qualification Badge with Rifle bar, 10. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 11. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. His hardcopy medical record was not available for review. A review of the Department of Veterans Affairs’ Joint Legacy Viewer indicates the applicant was evaluated on 11 January 2002. He reported recently being incarcerated for disorderly contact but did not remember the incident. He was told he broke into his mother’s home by breaking a window, tore her gown at the shoulder, and ran out of the house. He stated there was a similar incident involving aggressive behavior toward his mother 4 years prior. He stated he was treated for seizures as a child and was on Dilantin on and off since the 6th grade. He had a history of alcohol abuse and completed a treatment program at the Department of Veterans Affairs (VA) in 1990. He lived with his mother and was unemployed. He reported a difficult relationship with his stepfather and he was shot by his stepfather in his early 20s. He reported hearing voices for the past 12 years. He states he can’t blame the voices for all his criminal actions because he does some of then when not hearing voices. He was diagnosed with Psychosis Disorder, not otherwise specified (NOS) and a need to rule out a seizure disorder. He was started on Risperdal. On 14 January 2002, he reported feeling more at ease on the medication but still hears voices. The voices tell him to get up and walk to the store. He still feels someone is watching him. On 23 January 2002, he reported the voices still tell him to get up, take a walk, get in the car, etc. He did not return to the clinic until 13 August 2002. He reported not taking medication for several months and the voices returned telling him to get up, turn on the radio, or go for a walk. He reported stopping his seizure medication and has had some seizures. He did not return to behavioral health until 13 May 2010. He stated his mother passed away and he was now living with a cousin and was unemployed. He reported a history of 3 DUIs. He stated he applied for VA disability but was denied. He continued to get medical care at the VA but did not return to behavioral health clinic until 3 December 2014. At the time he was seen and given a service connected rating of 10% for eczema. He was seen in the emergency room due to depressive symptoms. He reported drinking 8-9 24 ounce beers a day. He was medically cleared and admitted to the psychiatric ward. He reported heavy use of alcohol leading to depression and suicidal ideation. He was discharged on 10 December 2014 with the diagnoses of Alcohol Dependence Disorder and Depressive Disorder, NOS. On 21 July 2015, he was admitted to the residential facility. He reported that he wanted treatment for his alcohol addiction, PTSD, housing support, and an increase in his disability rating. On 2 August 2015, he started the residential substance treatment program. His diagnoses were Alcohol Dependence Disorder and Depressive Disorder, NOS. On 29 September 2015, he completed the treatment program. His discharge diagnosis was Depressive Disorder, NOS. On 28 October 2015, the applicant reported he experienced military sexual trauma. However, he stated that he was stationed at Fort Bragg and went to Columbus, GA on the weekend to visit his girlfriend in 1987. During the weekend visit he stated he was physically and sexually assaulted by his girlfriend’s ex-boyfriend and 3 other males. He endorsed all PTSD symptoms except flashbacks, reckless behaviors, and persistent negative emotional state. He was diagnosed with PTSD and received a service connected disability rating of 100% effective 28 October 2015. There is documentation to support behavioral health diagnosis at the time of his discharge. As required by liberal consideration guidance, the applicant’s PTSD is partially mitigating for the misconduct that led to his discharge. It does not mitigate the applicant’s DUI in 1986 which preceded his sexual assault in 1987. In addition, there is no nexus between willfully damaging government property and PTSD. Under liberal guidance PTSD is mitigating for AWOL and failure to report behaviors. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. * Did the condition exist or experience occur during military service? Yes. * Does the condition experience actually excuse or mitigate the discharge? Partial mitigation. * Does the condition or experience outweigh the discharge? No. BOARD DISCUSSION: The Board carefully considered the applicant's request, 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 applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being only partially 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. The Board concurred with the correction described in Administrative Note(s) below. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the correction described in Administrative Note(s) below. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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): The applicant’s DD Form 214 is missing required statements in block 18 (Remarks). Correct the DD Form 214 by adding the following to block 18: “Continuous honorable active service from 19830503 – 19870202//Member has completed first full term of service.” 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 Army Board for Correction of Military Records (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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 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 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. 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; 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. 7. 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. 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) AR20210016057 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1