IN THE CASE OF: BOARD DATE: 3 May 2023 DOCKET NUMBER: AR20220010030 APPLICANT REQUESTS RECONSIDERATION FOR: an upgrade of his under other than honorable conditions 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR200900 on 17 November 2009. 2. The applicant states, in effect: a. At the time of his discharge, he was dealing with the residuals stemming from a traumatic brain injury (TBI) incurred while on active duty service. He was given an order to procure parts by a senior ranking service member and did not think twice about the order. Unfortunately, he was stuck at the location where he obtained the parts and was subsequently declared absent without leave (AWOL). b. Had he not been dealing with the residuals of his TBI, he would not have complied with the order and would have recognized that it was an unlawful order that would result in him being in a compromised position vulnerable to becoming AWOL [sic]. He receives health care through the Veterans Affairs (VA) for his TBI, but the character of service prevents him from receiving monetary benefits, which he desperately needs at this time. 3. The applicant did not provide documentary evidence in support of his claim for reconsideration to upgrade his current discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 December 1981. b. The applicant accepted nonjudicial punishment (NJP) under Article 15 on/for: * 28 September 1982, absenting himself without authority from his unit, from on or about 14 August 1982 until on or about 15 September 1982; he was reduced to the grade of private/E-1 * 12 November 1982, dereliction in the performance of his duties in that he willfully failed to sign in for a barracks guard duty on 6 November 1982 * 21 January 1983, absenting himself without authority from his unit, from on or about 6 January 1983 until on or about 12 January 1983, and failed to go at the time prescribed to your appointed place of duty on 13 January 1983 c. The applicant’s duty status changed as follows: * From Present for Duty (PDY) to AWOL, effective 25 April 1983 * From AWOL to Dropped from the Rolls (DFR), effective 25 May 1983 * From DFR to PDY, effective 19 June 1983 (surrendered) d. DA Form 458 (Charge Sheet), dated 27 July 1983, reflects the applicant was charged with one specification of being absent without authority from his unit on or about 25 April 1983 until on or about 19 July 1983. e. On 27 July 1983, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. After receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of service – in lieu of trial by court-martial. He acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a dishonorable discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf; he did not submit any statements f. On 15 August 1983, 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, with a character of service of under other than honorable conditions. g. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged on 24 August 1983, under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with a character of service of under other than honorable conditions. He completed 1 years, 3 months, and 2 days of net active service this period and 5 months and 4 days of total prior inactive service. He had lost time as follows: 14 August 1982 to 14 September 1982 6 January 1983 to 11 January 1983 29 March 1983 to 19 April 1983 25 April 1983 to 18 July 1983 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 6. AR 635-200 states, a member who has committed an offense 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. 7. 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. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting an upgrade of his 24 August 1983 discharge characterized as under other than honorable conditions. He states he sustained a traumatic brain injury (TBI) and this resulted in his poor judgement and periods of absence without leave (AWOL): “At the time of my discharge, I was dealing with the residuals stemming from a traumatic brain injury incurred while on active-duty service. I was given an order to procure parts by a senior ranking service member and didn't think twice about the order. Unfortunately, I was stuck at the location that I obtained the parts and was subsequently declared AWOL. Had I not been dealing with the residuals of my TBI, I would not have complied with the order and I would have recognized that it was an unlawful order that would have resulted in my being in a compromised position vulnerable to becoming AWOL.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 1 December 1981 and was discharged under other than honorable conditions on 24 August 1983 under the separation authority provided by chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 May 1982): Discharge for the Good of the Service. It does not contain a period of service in a hazardous duty pay area d. His request for a discharge upgrade was denied by the ABCMR on 17 November 2009 (AR20090011095). Rather than repeat their findings here, the board is referred to the record of proceedings. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. From the prior ROP: “The applicant states that while on leave around June 1982, he was involved in a vehicle accident. He was hospitalized and medically evacuated to the hospital at Travis Air Force Base. The Army incorrectly identified him as being absent without leave (AWOL). He suffered extensive head injuries and was unable to make proper decisions or to advocate for himself.” f. The ROP notes there was no evidence of the accident or TBI submitted with that application. g. There was no medical document submitted with this application and his service predates AHLTA. h. Part II of his Personnel Qualification Record (DA Form 2-1) shows four periods of absence without leave. A Charge Sheet (DA Form 458) shows he was charged with AWOL from on or about 25 April 1983 thru on or about 19 July 1983. i. On 27 July 1983, the applicant voluntarily requested discharge for the good of the service under chapter 10 of AR 635-200. His request was approved by the acting division commander on 15 August 1983. j. There is no evidence the applicant had a mental health condition, TBI related sequelae, or other medical condition which would have contributed to or would now mitigate the UCMJ violation which resulted in his discharge. Furthermore, there is no evidence the applicant had any medical condition prior to his discharge which would have failed the medical retention standards of chapter 3, AR 40-501, and would therefore have been a cause for referral to the Disability Evaluation System. k. Review of his records in JLV shows he has received intermittent assistance with homelessness and has several chronic physical conditions including diabetes, chronic obstructive pulmonary disease, and heart disease. Homelessness is the only problem on his medical problem list. l. It is the opinion of the ARBA medical advisor that a discharge upgrade based on a medical condition is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 the medical review, the Board concurred with the advising official finding no evidence the applicant had a mental health condition, TBI related sequelae, or other medical condition which would have contributed to or would now mitigate the UCMJ violation which resulted in his discharge. Furthermore, there is no evidence the applicant had any medical condition prior to his discharge which would have failed the medical retention standards and would therefore have been a cause for referral to the Disability Evaluation System. Based on these findings, a referral of the applicant’s military medical records to the military Disability Evaluation System (DES) or disability separation/retirement is not warranted. Therefore, relief was denied. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 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 AR200900 on 17 November 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. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 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. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 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. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010030 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1