IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20220000653 APPLICANT’S REQUEST: An upgrade of his under honorable conditions (general) character of service to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 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 sustained some injuries while serving, but they were not documented. He also states, in effect, that he did not note the mental and physical abuse that he endured at Fort Hood, TX. He did not want to be discharged, but due to abuse he felt mentally challenged. 3. On 25 August 1987, the applicant enlisted in the Regular Army (RA) for 3 years. He held military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman). On 19 January 1988, he was assigned to Fort Hood with duties in his MOS. 4. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on: a. 30 March 1988, for being absent without leave (AWOL) from his unit from 7 to 19 March 1988. His punishment consisted of reduction from pay grade E-2 to E-1, a forfeiture of $335 pay for 2 months, and 45 days of extra duty. b. 24 May 1988, for being AWOL from his unit from 9 to 10 May 1988. His punishment consisted of 14 days of extra duty and restriction and a forfeiture of 7 days of pay [$182]. 5. On 20 December 1988, he was command referred to the Alcohol Drug Abuse Prevention and Control Program (ADAPCP) for evaluation after he was arrested for driving under the influence (DUI), at the time his duty performance and conduct were rated as fair. 6. On 6 January 1989, he accepted NJP, for operating a passenger vehicle while drunk and for wrongfully consuming alcoholic beverages, on 16 December 1988. His punishment consisted of reduction from pay grade E-3 to E-2 (suspended 60 days), a forfeiture of $391 pay, and 14 days of extra duty and restriction. 7. On 10 January 1989, his installation driving privileges were suspended for the above drunk driving offense. 8. On 14 March 1989, he accepted NJP for being disrespectful in language towards a noncommissioned officer by saying “F__ Off” and for disobeying a lawful order, on 9 March 1989. His punishment consisted of reduction from pay grade E-3 to E-2, a forfeiture of 7 days of pay ($182), and 14 days of extra duty and restriction. 9. On 20 March 1989, he underwent a medical examination and a mental status evaluation and he was determined qualified for separation. 10. Between April 1988 and March 1989, he received monthly counseling’s as well as event driven counseling. Between July and December 1988, he was told he showed great improvement. His appearance and duty performance were outstanding. In October 1988, he was promoted to pay grade E-3. However, in October 1988, he also failed his Army Physical Fitness Test. In December 1988, he was counseled concerning a DUI. In February 1989, he was counseled for failing to clean his room, and suspension of his driving privileges. In March 1989, he was counseled for being disrespectful toward an NCO. 11. On 13 April 1989, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance prior to the expiration of his term of service with a general discharge. The commander stated his proposed action was based on the applicant's NJP, for being disrespectful toward an NCO; for suspension of his installation driving privileges; for drunk driving and an NJP for drunk driving; NJP for being AWOL (twice), and due to counseling for lying to an NCO. He was advised of his rights. 12. On 14 April 1989, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated action to separate him under the provisions of chapter 13, AR 635-200, for unsatisfactory performance. He declined to submit statements in his behalf. 13. The applicant's commander recommended that he be separated from the Army prior to the expiration of his term of service under the provisions of chapter 13, AR 635-200, due to unsatisfactory performance. 14. On 17 April 1989, the appropriate authority waived the requirement for a rehabilitative transfer and directed that he be issued a general discharge under honorable conditions. 15. On 16 May 1989, he was discharged in pay grade E-1, due to unsatisfactory performance under the provisions of chapter 13, AR 635-200, he completed 1 year, 8 months, and 9 days of net active service this period. He was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge (Rifle and Hand Grenade). His DD Form 214 shows in: * Character of Service, Under Honorable Conditions (General) * Separation Authority, Chapter 13, AR 635-200 * Narrative Reason for Separation, Unsatisfactory Performance * Dates of Time Lost During This Period, 19880307-19880318 and 19890509- 19890509 16. On 9 August 1990, the Army Discharge Review Board denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 17. 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. a. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. The applicant contends he sustained some injuries while serving, but they were not documented. He also states, in effect, that he did not note the mental and physical abuse that he endured at Fort Hood, TX. He also did not want to be discharged, but due to abuse he felt mentally challenged. c. The available evidence shows the applicant was discharged under the provisions of AR 635-200, chapter 13, for unsatisfactory performance, due to various offenses between 1988 and 1989, to include four NJP’s, for being respectful toward an NCO, for suspension of his installation driving privileges, for drunk driving, for being AWOL (twice), and for lying to an NCO. He completed 1 year, 8 months, and 9 days of his 3-year enlistment obligation. Neither the applicant nor his records provide information reference injuries sustained by the applicant nor is there any evidence of mental or physical abuse. 18. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 19. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the ROP. There were no records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or in the Health Artifacts Image Management Solutions (HAIMS), likely due to the age of the case. Search in the VA's Joint Legacy Viewer (JLV), revealed that the applicant was not currently registered at a VA site. The applicant requests a discharge upgrade from General, Under Honorable Conditions to Honorable. He stated that he suffered injuries while in service that were not documented. And further, he indicated that he believes the record to in error because it doesn’t take into account the physical and mental abuse he endured while at Ft Hood. a. The applicant was separated form service under provisions or AR 635-200, chapter for unsatisfactory performance. On 13Apr1989, he was recommended for separation for disrespect to NCO (14Mar1989); suspension of installation driving privileges for drunk driving 10Jan1989; drunk driving on 06Jan1989; AWOL 24May1988; AWOL 30Mar1988; lying to NCO 21Apr1988. Also noted in his record were an 04Oct1988 Failed PT test and a 16Dec1988 drunk driving incident which resulted in suspension of driving privileges for which he was Command referred on 20Dec1988, for Alcohol/Drug Abuse Prevention and Control Enrollment. As a result, he was placed in non resident rehabilitation. No further details of his progress in treatment were provided. His service was characterized as General, Under Honorable Conditions. b. 20Mar1989 Report of Mental Status Evaluation showed normal behavior. He was fully oriented and fully alert. His mood/affect was unremarkable; his thinking process was clear; his thought content was normal; and memory was good. The applicant was deemed to meet retention standards of AR 40-501 chapter 3. In the 20Mar1989 Report of Medical History (for chapter separation) the applicant endorsed that he was in good health and that he was not taking any medication. He reported weight loss and occasional lumbosacral back pain. The 20Mar1989 Report of Medical Exam revealed no significant abnormality to include examination of the spine. His physical profile was PULHES 111111. He was deemed qualified for separation or retention. c. There were no medical treatment visits, to include those for injuries were sustained while in service, that were available for review. The record did not show that he was diagnosed with any BH conditions to include PTSD, TBI or MST. Therefore, concerning the 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, evidence does not reasonably support that there was a boardable behavioral health diagnosis at the time of his discharge to consider with respect to mitigation of the offences which led to his discharge. In addition, there was no documentation to support that the applicant had any conditions that failed medical retention standards in accordance with AR 40-501 chapter 3, warranting separation through medical channels. No change in character of service or reason for discharge is recommended at this time, that can be based on the medical evidence that is currently available for review. Recommend that the applicant submit medical records to support his contentions. 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 medical opinion finding no documentation to support that the applicant had any conditions that failed medical retention standards. The Board determined the evidence in the applicant’s record does not reasonably support that there was a boardable behavioral health diagnosis at the time of his discharge to consider with respect to mitigation of the offences which led to his discharge. 2. The Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided no post service achievements or character letters of support to weigh a clemency determination. Evidence in the record shows the during the applicant 1 year, 8 months, and 9 days of his 3-year enlistment obligation there was numerous offenses of misconduct. The applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 3. The Board agreed the burden of proof rest on the applicant; however, he did not provide any supporting documentation and his medical record has insufficient evidence to support the applicant contentions of behavioral health issues that would warrant a discharge upgrade. 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 : : : 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. ADMINISTRATIVE NOTE(S): NA 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 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. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely b. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. c. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 4. 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. 5. 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. 6. 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 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. 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) AR20220000653 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1