IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210011639 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his under other than honorable conditions (UOTHC) discharge to a general 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. 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 AR20170008283 on 30 November 2020. 2. The applicant reiterates his previous contentions and states, his squad leader staff sergeant B had it out for him from the very start of training, and when he could not endure his constant verbal and mental abuse he cracked and asked for a temporary leave. He said you got it, only feel free to make it a permanent one and don't come back. The applicant was still an immature young adult and went into anxiety and deep depression and foolishly took his advice. This little moment of time has haunted him his entire life. Feeling like he completely failed and let down his country. He thinks the thing he has been needing all these years may be his country’s forgiveness for not standing up to a bully sergeant who took more away from him than an honorable discharge. He finally realized how important it was to him to submit this request. He needed to do this for an attempt at closure and forgiveness for his adolescent handling of this situation. 3. On 20 June 1980, at the age of 17 years old, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty 12B (Combat Engineer). 4. His Personnel Qualification Record shows he was assigned to Fort Carson, CO, on or about 9 October 1980, and served honorably for more than a year. He attained the rank of private (E-2) on 20 December 1980 and private first class (E-3) on 1 April 1981. 5. On 27 October 1981, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for absenting himself from his place of duty and remained so absent for approximately two hours on 25 September 1981. His punishment consisted of a reduction to pay grade private/E-2, which was suspended until 27 January 1982; and extra duty for 14 days. 6. His record contains Personnel Action forms that show during the period of 17 January to 15 July 1982, he was absent without leave (AWOL) and dropped from his unit’s rolls (DFR). The applicant surrendered to military authorities at Fort Knox, KY, on 15 July 1982, and he was further assigned to the personnel confinement facility. 7. On 15 July 1982, a Personnel Action form shows his duty status was changed from present for duty to “hospital”. The applicant’s duty status was changed from hospital to AWOL, effective 2 August 1982. 8. On 1 February 1984, his duty status was changed from DFR to attached/present for duty. The Personnel Action form also states, the applicant was apprehended by civilian authorities at 1800 hours on 16 January 1984 in, for a civilian charge of unlawful transaction with a minor. He was confined in jail, in, pending a court appearance. On 1 February 1984, he appeared in court in, and was released on his own recognizance pending a future court date. The applicant returned to military control on the same date and place. The applicant was pending determination of AWOL/DFR status from the Personnel Control Facility, Fort Knox, KY. 9. On 3 February 1984, the applicant indicated he did not desire to undergo a medical examination. 10. On 8 February 1984, court-martial charges were preferred against the applicant on a DD Form 458 (Charge Sheet) by the commander of the U.S Army Personnel Control Facility, Fort Knox, KY, for: * one specification of absenting himself from his unit without authority on or about 17 January 1982 and remained so absent until on or about 15 July 1982 * one specification of absenting himself from his organization without authority on or about 2 August 1982 and remained so absent until on or about 16 January 1984 11. On 8 February 1984, the applicant provided a statement of admission of AWOL for administrative purposes. He stated in part, he knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from 17 January 1982 through 15 July 1982 and from 2 August 1982 through 16 January 1984. 12. On 9 February 1984, the applicant consulted with legal counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge. Subsequent to that, he voluntarily requested discharge under the provisions of Chapter 10 (for the good of the service - in lieu of trial by court-martial), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). In pertinent part, he also acknowledged the following: * he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of benefits as a veteran under Federal and State law * he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he did not wish to submit any statements on his behalf * he did not desire a separation physical 13. On 13 February 1984, the commander of the Personnel Control Facility recommended approval of the applicant’s request to be discharged under the provisions of AR 635-200, Chapter 10, for the good of the service. The commander stated, based on the applicant's previous record, punishment could be expected to have a minimal effect. He believed a discharge at the time was in the best interest of all concerned. The applicant's commander also sated there did not appear to be any reasonable ground to believe that the applicant was at the time of his misconduct, mentally defective, deranged, or abnormal. He recommended the applicant be issued a discharge under other than honorable conditions. 14. The intermediate commander recommended approval of the applicant’s request to be discharged. On 21 February 1984, the separation authority approved the discharge under the provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, and directed the applicant be reduced to the grade of private/E-1 and be discharged under other than honorable conditions. 15. On 12 March 1984, the applicant was discharged in the rank of private/E-1. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service - in lieu of court-martial, and received an under other than honorable conditions character of service. He served 1 year, 8 months, and 29 days of creditable active service with 723 days of lost time from 17 January 1982 to 14 July 1982 and 6 August 1982 to 31 January 1984. 16. On 30 November 2020, the ABCMR voted unanimously to deny the applicant’s request for an upgrade of his discharge. The Record of Proceedings show, in pertinent part, the Army Review Board Agency Medical Advisor reviewed the applicant’s supporting documents and the applicant's medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration was applied, documentation does not support the applicant had a psychiatric condition in-service or at the time of separation. Accordingly, an upgrade was not recommended. b. Due to the period of service, active duty electronic medical records were void. Hard copy medical records were unavailable. c. VA records were void of contact. d. Personnel records noted pre-enlistment law involvement and drug use. e. The applicant submitted an undated last page of a psychological report. Due to the applicant only providing the last page, which is void of any reference to service or basis for symptoms and diagnoses, the information was unusable. 17. The applicant’s contentions were reviewed and considered; nevertheless, the evidence shows he provided no additional evidence and reiterated his previous contentions that were denied by the ABCMR in his previous request for an upgrade of his discharge. His previous request was also considered in accordance with clarifying guidance and published equity, injustice, or clemency determination guidance. 18. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 19. 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. 20. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to depression, anxiety he developed and bullying he experienced during his time in service. 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) and civilian medical documentation were 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 were provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Army Reserve (Delayed Entry Program) on 17 Jun 1980 and subsequently transitioned to the Regular Army on 20 Jun 1980. During his service, his awards included the Army Service Ribbon. His job assignment was as a Combat Engineer. He received an Article 15 for being absent without leave (AWOL) from 19-20 Sep 1981 and AWOL for two hours on 25 Sep 1981 while assigned to A Company, 4th Engineer Battalion, Fort Carson, CO during training at a bivouac site, Oberkleen, Germany. A Charge Sheet, dated 08 Feb 1984, cited him for going AWOL from 17 Jan 1982 - 15 Jul 1982 while still assigned to A Company, 4th Engineer Battalion, Fort Carson, CO, as well as from 02 Aug 1982 - 16 Jan 1984 while assigned to Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY. He submitted a Request for Discharge for the Good of the Service on 09 Feb 1984. He received an Under Other Than Honorable Conditions discharge on 12 Mar 1984 with DD-214 Narrative Reason, For the Good of the Service – In Lieu of Court-Martial. d. The ABCMR application included a statement from him noting, “my squad leader SSGT…flat had it out for me from the very start of training, and when I could not endure his constant verbal and mental abuse, I cracked and asked for a temporary leave. He said you got it, only feel free to make it a permanent one and don’t come back. I was still an immature young adult and went into anxiety and deep depression and foolishly too his advice…I think the thing I’ve been needing all these years may be my countries forgiveness for not standing up to a bully sergeant who took more away from me than an honorable discharge.” The supporting documentation included a clinical note from a clinical psychologist, dated 13 Jan 2011, which diagnosed him with “Unspecified Trauma-Related Disorder, Panic Disorder, Generalized Anxiety Disorder, Major Depressive Disorder, Recurrent, Moderate.” e. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). A VA message indicated, “the patient is currently not registered at a VA site, and therefore no VA data will be displayed.” f. 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, Unspecified Trauma- and Stressor- Related Disorder (i.e. DSM 5 nomenclature). As there is an association between this condition and avoidant behavior, there is a nexus between applicant’s symptoms and his extended periods of AWOL from his unit. 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. The alleged bullying behavior from his squad leader very likely contributed significantly to his overall level of distress and determination to go AWOL, as he so indicated. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who experience Unspecified Trauma- and Stressor-Related Disorder in a noncombat military environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, medical review and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, the reason for separation, medical review and whether to apply clemency. The Board concurred with the opinion of the Agency psychologist in that the applicant has a mitigating Behavioral Health condition. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. 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 for the period ending 12 March 1980 showing: • Characterization of Service: Under Honorable Conditions • Separation Authority: No change • Separation Code: No Change • Reentry (RE)Code: No Change • Narrative Reason for Separation: No Change 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) sets forth the basic authority for the separation of enlisted personnel. In pertinent part, the regulation states: a. An honorable discharge is a separation with honor. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 (TBI); 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. 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. a. 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. b. 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) AR20210011639 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1