ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  BOARD DATE: 15 April 2021 DOCKET NUMBER: AR20200006401 
APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20190009114 on 24 September 2019. Specifically, he requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 9 April 2020 

. 
Emailed response from the applicant to the Army Review Boards Agency (ARBA) Case Management Division (CMD), dated 9 February 2021 

. 
DD Form 214 (Certificate of Release or Discharge for Active Duty), for the period ending 27 January 1986 

. 
Department of Veterans Affairs (VA), Service-Connected Disability Rating Certificate, dated 19 November 2019; and Letter dated 28 October 2020 


FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20190009114 on 24 September 2019. 

2. 
As a new argument, the applicant states in effect, it has been over 34 years and he feels he deserves an upgrade. In his emailed response to CMD, he stated his request is due to military sexual trauma (MST).  He also states he turned to alcohol to mask his feelings and hide the shame.  He was too ashamed to admit something like this could happen to him, let alone seek help, so he turned to alcohol. This was so traumatic that it scarred him for life. 

3. 
The applicant enlisted in the Regular Army on 2 February 1983. After completing his initial entry training, he was reassigned to the Federal Republic of Germany, where he served from on or about 29 May 1983 through on or about 21 November 1984. 

4. 
The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions for the following offenses: 


. on 24 August 1983, for disobeying a lawful written order and willfully disobeying a verbal order from his superior noncommissioned officer (NCO), on or about 16 August 1983 
. on 27 October 1983, for disobeying a verbal order from his superior NCO and for being disrespectful in language towards another NCO, on or about 20 October 1983 
5. The applicant’s service records show he received General Officer Letters of Reprimand on the following occasions: 
. on 22 March 1985, for driving a motor vehicle while under the influence of alcohol, on 13 March 1985, in Hinesville, GA 
. on 21 August 1985, for driving a motor vehicle while under the influence of alcohol, on 9 August 1985, in Hinesville, GA 
6. 
The applicant’s commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) on 16 September 1985, based on his driving under the influence of alcohol incidences on 13 March 1985 and 9 August 1985. He elected not to submit statements in his own behalf. His battalion commander approved the bar to reenlistment on 23 September 1985. 

7. 
The applicant underwent a mental status evaluation on 28 October 1985. The relevant DA Form 3822 (Report of Mental Status Evaluation) shows the mental status evaluation was conducted for misconduct.  The report further shows he had the mental capacity to understand and participate in board proceedings; he was mentally responsible; and he was cleared for any administrative action deemed appropriate by command. 

8. 
The applicant underwent a separation examination on 29 October 1985. He indicated he was in good health. The examining physician found him qualified for separation. 

9. 
The applicant’s service records further show: 

. 
he received another General Letter of Reprimand on 30 October 1985 for driving a motor vehicle while under the influence of alcohol on 25 October 1985, in Hinesville, GA 

. 
his duty status was changed from present for duty (PDY) to confined by civilian authorities (CCA) on 13 November 1985, when he was confined for 30 days at the Hinesville Jail 

. 
his duty status was changed from CCA to PDY on 13 December 1985 



10. 
The applicant’s commander initiated a DA Form 268 (Report for Suspension of Favorable Personnel Actions) on 9 December 1985. The commander indicated the reason for his action was the applicant's pending elimination under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, Section III, due to the commission of serious offenses. 

11. 
The applicant's commander notified the applicant on 11 December 1985 that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct – commission of a serious offense. The commander noted his specific reason as the applicant’s three separate driving motor vehicles while under the influence of alcohol incidences. The applicant acknowledged receipt of the notification memorandum the same day. 

12. 
The applicant consulted with counsel on 12 December 1985 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He requested consideration of his case by an administrative separation board and personal appearance before administrative separation board. He elected to submit a statement in his own behalf, however no statement is available for review. 

13. 
The applicant's commander formally recommended the applicant's separation from service on 16 December 1985, under the provisions of Army Regulation 635-200, Chapter 14. He again listed the aforementioned reasons. The commander noted the applicant’s request to present his case before an administrative separation board; a personal appearance before administrative separation board and to submit a personal statement in his own behalf. The commander recommended requirements for rehabilitation be waived. 

14. 
The applicant’s intermediate commander recommended approval of his separation on 16 December 1985. He also recommended that the rehabilitation requirements be waived. 

15. 
Consistent with the chain of command’s request, the separation authority approved his discharge on 27 December 1985. He also waived requirements for a rehabilitative transfer and directed the applicant be furnished a general discharge, under honorable conditions. 

16. 
The applicant was discharged on 27 January 1986, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. The DD Form 214 he was issued confirms his service was characterized as under honorable conditions (general). He was credited with completing two years, 10 months, and 27 days of net active service. 

17. 
The applicant applied to the ABCMR for an upgrade of his discharge; however the Board denied his request on 24 September 2019. 

18. 
The applicant does not provide and his service record does not contain any supporting documentation with respect to his contention that his misconduct resulted from an earlier instance of MST he suffered during his period of military service. 

19. 
The applicant provides his VA certificate of service for civil service preference and a letter showing he was rated at 100 percent service-connected disability. 

20. 
The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance.  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, including post-traumatic stress disorder (PTSD). The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 

21. 
MEDICAL REVIEW: 


a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Honorable Conditions (General) discharge was due to an MST he experienced while on active duty. 
b. 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) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. 
c. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 02 Feb 1983. He was assigned overseas to Germany from 29 May 1983 -21 Nov 1984. During his service, his awards included the Army Achievement Medal and the Army Service Ribbon. His job assignment was Cavalry Scout. He received two Article 15’s for bringing “a case of beer into the barracks…disobeying an order to leave the beer on the first floor” (16 Aug 1983) and being disrespectful to an NCO (20 Oct 1983). He also received three Letters of Reprimand for driving at or exceeding the legal alcohol limit of .12% BAC on 22 Mar 1985, 21 Aug 1985 and 30 Oct 1985. A Separation Under Provisions of AR 635-200, Chapter 14 was initiated on 25 Oct 1985, based on these three DUI convictions. He received an Under Honorable Conditions (General) discharge on 26 Jan 1986 with narrative reason: Misconduct ­Commission of a Serious Offense. 
d. The VA electronic medical record, Joint Legacy Viewer (JLV) indicated a 100% service connected disability with Posttraumatic Stress Disorder 100%. A Psychiatric Nurse Practitioner Note, dated 02 Apr 2020 indicated, “’things are not real good with me, cry a lot and having bad thoughts’…seeing the person who abused him in the military (not actually present)…finds if he keeps active and does not stay in his room he is less likely to experience this…been re-experiencing this for some time.’” Some notes indicated his report of being incarcerated for ten years on a charge of kidnapping, as well as several inpatient psychiatric hospitalizations associated with substance abuse over the years. The Problem List included Posttraumatic Stress Disorder, Chronic (13 Nov 2020), Bipolar Disorder, Current Episode Mixed, Unspecified (12 Mar 2020), Other Recurrent Depressive Disorders (27 Nov 2018), Cocaine Dependence Uncomplicated (27 Nov 2018), Alcohol Dependence Uncomplicated (21 Nov 2018) and Insomnia Unspecified (14 Nov 2018). 
e. 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 a mitigating Behavioral Health condition, PTSD/MST. As there is an association between PTSD/MST and use of alcohol to self-medicate symptoms, there is a nexus between his PTSD/MST and the pattern of substance abusing behavior applicant demonstrated. In addition, as there is an association between PTSD/MST and resistant, negative attitudes toward authority figures, there is a nexus between his PTSD diagnosis and the disrespectful, belligerent behavior he demonstrated at times. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD, and encounter an MST in a noncombat environment. A discharge upgrade is recommended. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. One potential outcome discussed was to grant clemency by upgrading the applicant’s characterization of service based upon the recommendation of the medical advisor.  However, based upon the short term of honorable service completed prior to a pattern of misconduct and a lack of evidence showing when the alleged sexual assault occurred to determine whether the misconduct should be mitigated by the MST, the Board concluded there was insufficient evidence of 
an error or injustice which would warrant a change to the applicant’s characterization of 
service. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
:XXX : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
: :XXX :XXX 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. 
X 
CHAIRPERSON 
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 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c. 
Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 


2. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating 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. 
a. 
Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 

b. 
 An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 

c. 
 Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and BCM/NRs on 25 July 2018, 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. 
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, Boards 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. 


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