IN THE CASE OF: BOARD DATE: 11 March 2021 DOCKET NUMBER: AR20200002520 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge 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 3-year time frame provided in Title 10, United States Code, 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: a. His discharge should be upgraded to honorable from under other than honorable conditions. It has been over 26 years and he should have done this a long time ago. He is now a carpenter journeyman with Local 46 and has post-traumatic stress disorder (PTSD) due to his discharge and Army trauma. b. He believes the record to be unjust because he received the Army Achievement Medal, the Army Service Ribbon, and achieved the rank/grade of specialist/E-4. He needs to be recognized as a veteran for his 3 years of service. 3. The applicant enlisted in the Regular Army on 20 September 1990. 4. On 25 January 1993, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He acknowledged understanding he could request discharge for the good of the service because of charges which were preferred against him under the Uniform Code of Military Justice (UCMJ), at least one of which authorized the imposition of a bad conduct or dishonorable discharge. b. By submitting this request for discharge, he acknowledged understanding the elements of the offenses charged and was guilty of at least one charge against him or of at least one lesser included offense. Under no circumstanced did he desire further rehabilitation. c. Prior to completing this form, he was afforded the opportunity to consult with appointed counsel, who fully advised him of the nature of his rights. He understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable and that he may encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 5. On 27 January 1993, the applicant submitted a statement in his own behalf, stating the following: a. The Criminal Investigation Division (CID) Report of Investigation (ROI) reflects that upon his apprehension, he cooperated fully with the military police investigators. He voluntarily waived his rights, answered their questions, and signed a sworn written statement. b. The single specification preferred against him involves a very small quantity (1 gram) of marijuana and neither the allegation nor the CID ROI indicates any exchange of money or profit. A records check did not reveal any derogatory information prior to the investigation. c. Prior to his apprehension, he served as a loader, driver and gunner and tried to do his job to the best of his abilities. From 20 October 1992 to 6 November 1992, he was the loader as part of a crew at Grafenwoehr, Germany which fired distinguished on Tank Table VIII. Prior to his apprehension, he was scheduled for reassignment to Fort Bliss, TX, which was wanted very much to do to continue his active service. He not only ruined his military career, but now faces the consequences of his actions which will affect him for the rest of his life. d. Please do not automatically rule out consideration of an honorable or general discharge. He believes his overall record during his enlistment supports his request for a general discharge. Issuance of an other than honorable discharge will not only severely affect his ability to obtain civilian employment, but permanently remove many opportunities from him at the age of 21. 6. In an undated memorandum, the applicant’s chain of command, from company commander, to battalion commander, to brigade commander all recommended approval of an under other than honorable conditions discharge. Distribution of marijuana was considered a serious offense, but discharge in lieu of court-martial was deemed appropriate. 7. On 2 February 1993, the approval authority approved the applicant’s request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200. He directed the applicant would be discharged under other than honorable conditions and he would be reduced from specialist/E-4 to the lowest enlisted rank. 8. The applicant’s DD Form 214 shows the following: * he was discharged under other than honorable conditions on 23 March 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of court-martial * he completed 2 years, 6 months, and 4 days of net active service * his service was characterized as under other than honorable conditions * his rank/grade is listed as private/E-1 * he was awarded or authorized the Army Achievement Medal and the Army Service Ribbon 9. There is no evidence of record the applicant was ever diagnosed with or treated for PTSD or other behavioral health, PTSD-like symptoms, either in service or after his discharge. 10. In a letter dated 15 September 2020, the Army Review Boards Agency requested the applicant provide documents that support his mental health/PTSD issues and placed his case on hold for 30 days, pending receipt of the requested documents. The applicant did not respond or provide any medical documentation. 11. Based on the applicant’s condition the Army Review Boards Agency medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for upgrade of his under other than honorable conditions discharge. 2. His discharge should be upgraded to honorable from under other than honorable conditions. It has been over 26 years and he should have done this a long time ago. He is now a carpenter journeyman with Local 46 and has post-traumatic stress disorder (PTSD) due to his discharge and Army trauma. 3. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 4. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. 5. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. 6. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 20 September 1990 and was discharged on 23 March 1993 and he was discharged under other than honorable conditions. 7. On 25 January 1993, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 8. On 27 January 1993, the applicant submitted a statement in his own behalf, stating the following: The Criminal Investigation Division (CID) Report of Investigation (ROI) reflects that upon his apprehension, he cooperated fully with the military police investigators. He voluntarily waived his rights, answered their questions, and signed a sworn written statement. The single specification preferred against him involves a very small quantity (1 gram) of marijuana and neither the allegation nor the CID ROI indicates any exchange of money or profit (emphasis added). A records check did not reveal any derogatory information prior to the investigation. 9. In an undated memorandum, the applicant’s chain of command, from company commander, to battalion commander, to brigade commander all recommended approval of an under other than honorable conditions discharge. Distribution of marijuana was considered a serious offense (emphasis added), but discharge in lieu of court-martial was deemed appropriate. 10. As noted above the applicant was charged with possession, but not distribution. There is no evidence of record the applicant was ever diagnosed with or treated for PTSD or other behavioral health, PTSD-like symptoms, either in service or after his discharge. In a letter dated 15 September 2020, the Army Review Boards Agency requested the applicant provide documents that support his mental health/PTSD issues and placed his case on hold for 30 days, pending receipt of the requested documents. The applicant did not respond or provide any medical documentation. 11. The applicant did not submit any medical documentation to support his claim that he was ever diagnosed or treated for PTSD. 12. JLV contains no BH diagnoses. 13. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have a mitigating diagnosis. The applicant met retention standards at the time of discharge. The applicant does not have a service connection. Under liberal guidance, he does not have a mitigating factor for unsatisfactory performance (possession of marijuana (1 gram)). Should medical documentation pertinent to the applicant’s time in service become available, the Agency BH advisor will gladly reconsider the applicant’s request for medical mitigation. 14. However, this Agency Behavioral Health advisor, due to the harshness of and potential injustice of the punishment, recommends the character of the discharge be upgraded out of compassion to General and his narrative reason be changed to Secretarial Authority (SA). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant and the review and conclusions of the advising official. The Board found the punishment to be harsh for the offense of possession of marijuana (1 gram). The Board concurred with the medical advisory opinion finding the applicant does not have a mitigating diagnosis. However, due to the harshness of the potential injustice the Board found relief was warranted with an upgrade to general, under honorable conditions and his narrative reason changed to read Secretarial Authority. 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 a recommendation for relief. 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 showing his characterization of service as general, under honorable conditions and the narrative reason as secretarial authority. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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, on those conditions or experiences. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. 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 had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002520 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1