IN THE CASE OF:  

BOARD DATE:  9 February 2021

DOCKET NUMBER:  AR20190010608


APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his discharge under other than honorable conditions (UOTHC).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Saint Dominic Hospital Behavioral Health Services Discharge Instructions and Medication List, dated 1 April 2019

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 AR20140006175 on 2 December 2019.

2.  The applicant states he needs to be on medication to control and help him cope with everyday life.  He needs to be a patient at the veteran hospital to afford good medical care.  He was forced to leave the Army.  He did not want to be discharged and had no say in the matter.  Due to his mental break down, he was no longer needed.

3.  On 25 August 1981, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years.  

4.  On 12 August 1983, he was assigned as a patient at the Medical Hold Detachment, U.S. Army Medical Center, Fort Rucker, AL.  On 26 September 1983, he went absent without leave (AWOL) and on 2 November 1983, he was arrested by the Jackson Police Department, Jackson, MS.  On 4 November 1983, he was returned to military control.

5.  On 8 November 1983, court-martial charges were preferred against the applicant for one specification of being AWOL from 25 September 1983 to 2 November 1983.

6.  On 9 November 1983, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provisions of AR 635-200, chapter 10.  He elected not to submit statements on his own behalf.

7.  By endorsement, dated 16 November 1983, the commander stated he personally interviewed the service member and he stated he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions.  The service member stated he departed AWOL from the Medical Hold Detachment, Fort Rucker, AL, and his approximate 38 days AWOL were due to personal and adjustment problems.  

8.  The applicant’s chain of command recommended approval of his request and on 28 February 1984, the appropriate separation authority approved the applicant’s request directing that he be reduced to the lowest enlisted grade and be discharged under other than honorable conditions.  

9.  On 8 March 1984, he was discharged accordingly.  His service was characterized as UOTHC.  He completed 2 years, 5 months, and 8 days of his contractual obligation, with 37 lost days.  He had 3 months of Foreign Service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized:

* Army Service Ribbon
* M-16 Rifle Marksman Marksmanship Qualification Badge
* Hand Grenade Sharpshooter Marksmanship Qualification Badge 

10.  The applicant provides Hospital Behavioral Health Services Discharge Instructions and Medication List, dated 1 April 2019, which show he was discharged from the hospital with a diagnosis of schizoaffective disorder, hypertension, generalized anxiety disorder, and suicidal ideations.

11.  On 2 December 2019 the ABCMR denied the applicant’s request to upgrade his UOTHC discharge, determining that the evidence presented did not demonstrate the existence of a probable error or injustice.

12. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial.  Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.  Members pending separation under Chapter 10, may request a medical examination in writing.  If a medical examination is requested by the member, then a mental status evaluation is required. According to the MCM, 1969 (Revised), Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable discharge.    

13.  The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge.

14.  The applicant requests an upgrade so that he may receive benefits.  The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency.

15.  Based on the applicant's reference to a medical condition(s) being the basis of his separation, the Army Review Board Agency medical staff provided a medical review for the Board members.  See the "MEDICAL REVIEW" section."

MEDICAL REVIEW:

The applicant is applying to the ABCMR requesting discharge upgrade, contending the misconduct which led to his Under Other Than Honorable Conditions discharge was due to a mental breakdown he developed during his time in service.  
  
The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and civilian medical documents
were reviewed as well. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. Hard copy military medical records were also not provided for review. 

Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 28 May 1981 and subsequently switched to the Regular Army on 25 Aug 1981. While on active duty, he was assigned overseas to Germany from 20 Jun 1983 – 25 Sep 1983. His job assignment was Equipment Records and Parts Specialist. He was charged with being absent without leave (AWOL) from 25 Sep 1983 – 02 Nov 1983 while assigned to Medical Holding Detachment, Fort Rucker, AL. He was picked up by the Jackson Police Department as an “Army deserter.” He submitted a Request for Discharge for the Good of the Army on 09 Nov 1983, indicating “personal and adjustment problems…got fidgety and left AWOL.” He received an Under Other Than Honorable Conditions discharge on 08 Mar 1984 in lieu of court-martial. 

In an earlier ABCMR application, he claimed to have been in the “mental ward.” at Keesler Force Base and Geising, Germany,” and was struggling with “mental stress, anxiety and Bipolar.” In the Supporting Documentation, a note, dated 01 Apr 2019 diagnosed him, “Schizoaffective Disorder, Generalized Anxiety Disorder,” and also indicated “Suicidal Ideation.” 

The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was an absence of any behavioral health clinical notes in the VA system, since he is not “registered at a VA site.” 

Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has mitigating Behavioral Health conditions, “mental breakdown,” as manifested with anxiety and depressive symptoms. As there is an association between anxiety/depressed mood and avoidant behavior, there is a nexus between applicant’s psychological symptoms associated with anxiety/depression and his absences from military duties during his time in service. It is possible that psychotic symptoms were also activated or worsened during his time in service, per his documented diagnosis years later of Schizoaffective Disorder. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and after his overseas assignment to Germany in particular. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop pronounced anxiety and depression, even when not combat related. A discharge upgrade is recommended.

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant states he needs to be on medication to control and help him cope with everyday life. He did not want to be discharged from the Army but due to his mental break down; he was no longer needed. His record shows he enlisted at the age of 17 years old and charges were preferred against him for one specification of being AWOL, resulting in 37 days of lost time.  He completed 2 years, 5 months, and 8 days of his 3 years contractual obligation. Board members reviewed the medical reviewer's assessment that the applicant has mitigating Behavioral Health conditions, “mental breakdown,” as manifested with anxiety and depressive symptoms. While his service did not rise to the level required for an honorable discharge, based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be upgraded to general, under honorable conditions. 
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20140006175 on 2 December 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 8 March 1984 showing his character of service as Under Honorable Conditions.



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.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided:   

   a.  An honorable discharge was a separation with honor and entitled 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

   c.  When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade.

     d.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate.  

     e.  Members pending separation under Chapter 10, may request a medical examination in writing.  If a medical examination is requested by the member, then a mental status evaluation is required.

2.  Per Manual for Courts-Martial 1969 (Revised Edition), Article 86, UCMJ –– absence without leave for more than 30 days, included a dishonorable 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 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.

4.  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)	 AR20190010608



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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