IN THE CASE OF: BOARD DATE: 7 October 2021 DOCKET NUMBER: AR20210010747 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge to 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) * DA Form 2-1 (Personnel Qualification Record – Part II) (missing signature page; items 27 through 34) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), Section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (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 is asking for this upgrade so he can get help; he has post- traumatic stress disorder (PTSD), mental health problems, sleep disorders, and memory issues, and, he points out, he gave the Army 2 1/2 years of solid Soldiering. While he acknowledges he made mistakes, he wants to become a better man; he has suffered a lot. On his application, the applicant has checked boxes for "PTSD" and "Other Mental Health," but he has not included any supporting documentation. 3. The applicant's service records show: a. On 17 November 1981, the applicant enlisted into the Regular Army for 3 years; he was 19 years old. Following the completion of initial entry training, and the award of military occupational specialty (MOS) 11B (Infantryman), orders assigned the applicant to Germany, and he arrived at his unit on 10 March 1982. After completing his tour in Germany, orders reassigned the applicant to Fort Riley, KS, and he arrived at Fort Riley, on 17 October 1983. b. Effective 5 January 1984, the applicant's Fort Riley leadership promoted him to specialist four (SP4)/E-4. On 17 February 1984, civilian authorities confined the applicant after charging him with indecent and lewd acts with a minor. On 24 February 1984, the civilian authorities released the applicant on a $5,000 bond; however, on 16 April 1984, civilian authorities again placed the applicant in confinement after he missed his trial date. Effective 1 June 1984, civilian authorities released the applicant, imposing a bond of $5,000. c. On 5 June 1984, the applicant's Fort Riley unit reported him as absent without leave (AWOL); on 10 June 1984, the applicant surrendered himself to his unit. On 29 June 1984, the applicant departed his unit again in an AWOL status, but he returned to military control, effective 30 June 1984. On 16 July 1984, the applicant went AWOL once more, and, effective 15 August 1984, his Fort Riley unit dropped him from its rolls. d. At 1815 hours, on 1 October 1984, the applicant returned to military control, but, at 2020 hours, he left again in an AWOL status; his unit dropped him from its rolls, effective 31 October 1984. e. On 19 March 1985, civilian authorities arrested the applicant, and, effective 22 March 1985, orders reassigned the applicant to the U.S. Army Personnel Control Facility (PCF) located at Fort Carson, CO. On 2 April 1985, the applicant's PCF commander completed a Commander's Information/Summary Sheet pertaining to the applicant; the commander opined the applicant's attitude was "Good," and reported the applicant had said he went AWOL because "he had a lot on his mind pending civil court (sexual battery) & had to get his thoughts & case together." The applicant additionally disclosed he remained absent so he could help his daughter and to spend time with her. After a civilian court convicted him, he had to pay a $200 fine; he tried to obtain a loan from Army Emergency Relief (AER), but AER denied his request. As of when the commander last spoke to the applicant, the applicant expressed frustration because he was always on detail, and he felt no one cared; the applicant just wanted out of the Army. f On 29 May 1985, the PCF preferred court-martial charges against the applicant for four periods of AWOL: 5 to 10 June 1984 (5 days); 29 to 30 June 1984 (1 day); 16 July to 1 October 1984 (77 days); and 1 October 1984 to 19 March 1985 (169 days). g. On 5 June 1985, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he also acknowledged he was guilty of the charges. The applicant elected to submit the following statement in his own behalf: (1) The applicant said he felt the Army was a good start in life, and he was glad to have been a part of it. He expressed shame at having been AWOL; he never intended to be gone for so long. (2) The applicant indicated he planned to go back to school to get his high school diploma and then go to college; he eventually wanted to become an auto mechanic and raise a family. h. On 7 June 1985, the applicant accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for missing bed check. i. On 13 June 1985, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; the separation authority additionally ordered the applicant's reduction in rank from SP4 to private/E-1. On 27 June 1985, orders discharged the applicant accordingly. j. The applicant's DD Form 214 shows he completed 2 years, 8 months, and 25 days of his 3-year enlistment contract, with eight periods of lost time (confinement and AWOL). Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Army Service Ribbon, Overseas Service Ribbon, and two marksmanship qualification badges. The separation authority was AR 635-200, chapter 10, and the narrative reason for separation was "For the Good of the Service." k. On 27 July 2021, the Army Review Boards Agency sent the applicant a letter requesting he provide medical documents that supported his claim of PTSD; the applicant did not respond. 4. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in lieu of trial by court-martial. The Manual for Courts-Martial, then in effect, showed a punitive discharge was one of the available maximum punishments for violations of Article 86 (AWOL for More than 30 Days). 5. The Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 6. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. His hardcopy military medical record was not available for review. The applicant asserted he has PTSD and mental health problems but no medical documentation was provided for review. A review of the Department of Veterans Affairs (VA) Joint Legacy Viewer indicates he has not been evaluated or treated in the VA system. He does not have a service connected disability rating. There is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no documented behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being no documented behavioral health condition to consider in this case. Based on a preponderance of evidence, the Board determined 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. REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to provide the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was then required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. Paragraph 10-8 (Discharge Certificate Issued) stated commander normally were to issue an under other than honorable conditions character of service to Soldiers voluntarily requesting discharge under chapter 10; however, the regulation gave separation authorities the authority to direct a general discharge under honorable conditions, when merited. 3. AR 600-200 (Enlisted Personnel Management), in effect at the time, prescribed policies and procedures for the personnel management of enlisted Soldiers. Paragraph 6-11 (Approved for Discharge from the Service under Other than Honorable Conditions) stated, when a general court-martial authority (GCMCA) decided to discharge a Soldier under other than honorable conditions, the GCMCA would concurrently order the reduction of the Soldier to the lowest enlisted grade. Board action was not required for this reduction, and the regulation did not specify how separation authority was to notify the Soldier. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010747 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1