IN THE CASE OF: BOARD DATE: 15 November 2021 DOCKET NUMBER: AR20210012803 APPLICANT REQUESTS: The applicant, the spouse of a deceased former service member (FSM), requests, in effect, the upgrade of her husband's under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * FSM's death certificate * Two letters of support 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, in effect, her husband incurred behavioral health conditions (to include post-traumatic stress disorder (PTSD)) after sustaining a sexual assault. She would like her husband to get the honor he deserves for having served his country. a. Before he died, the FSM disclosed that he had left the Army after three or four guys had held him down and put a stick up his rear; the FSM's sergeant tried to cover things up, so, while on Christmas break, the FSM decided he would just stay home. b. In support of her request, the applicant submits two letters of support that describe the FSM as a caring and compassionate person who touched many lives and made those lives better. In addition, the FSM worked in a soup kitchen every Saturday, and he was always eager to help others. 3. The FSM's service records show: a. On 15 July 1980, the FSM enlisted into the Regular Army for 3 years; he was 18 years old. Orders assigned the FSM to Fort Knox, KY for basic combat training (BCT), after which the FSM transferred to Fort Benjamin Harrison for advanced individual training (AIT) in military occupational specialty 75B (Personnel Administration Specialist). b. Effective 5 January 1981, the FSM's AIT unit reported the FSM's duty status had changed from ordinary leave to absent without leave (AWOL); on 3 February 1981, the AIT unit dropped the FSM from unit rolls. c. On 20 May 1981, civilian authority arrested the FSM and returned him to military control; orders subsequently reassigned the FSM to the U.S. Personnel Control Facility (PCF) located on Fort Bragg, NC, and he arrived at the PCF, on or about 20 May 1981. d. On 28 May 1981, the PCF preferred court-martial charges against the FSM for having been AWOL from 5 January to 20 May 1981 (135 days). On 28 May 1981, after consulting with counsel (a Judge Advocate General officer), the FSM voluntarily requested discharge in-lieu of trial by court-martial under 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 that counsel had advised him of the implications of his request; the FSM also acknowledged he was guilty of the charge, and he elected not to submit statements in his own behalf. After filing his separation request, the PCF approved excess leave for the FSM, and, on 29 May 1981, the FSM departed Fort Bragg. e. On 29 May 1981, the FSM's PCF commander recommended approval of the FSM's separation request; the commander affirmed he had personally interviewed the FSM and learned the following: (1) The FSM stated his 135-day AWOL resulted from his dislike for the Army; he had made a "big mistake when he enlisted in July 1980 and, although he managed to make it through BCT, he could not cope with his 75B AIT. He stated that he was unaccustomed to being treated as he was during training, as he had just graduated from high school prior to his enlistment and had not worked or been away from home before." (2) "After eight weeks in AIT at Fort Benjamin Harrison, IN, he decided that the Army life was not for him and he departed AWOL. On 20 May 1981, after having been stopped and ticketed for speeding by [civilian authority], he was found to be AWOL from the Army, subsequently being turned over to military authorities, and transported to this facility, arriving on the same day. He stated that he would go AWOL again if not granted a discharge as he would not be at this facility had he not been arrested." f. On 1 July 1981, the separation authority approved the FSM's separation request and directed the FSM's under other than honorable conditions discharge; on 15 July 1981, orders discharged the FSM accordingly. The FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 months and 16 days of his 3-year enlistment contract; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the award of a marksmanship qualification badge. 4. The applicant states, in effect, her husband incurred PTSD following a sexual assault; she would like her husband to get the honor he deserves. a. During the FSM's era of service, Soldiers charged with UCMJ violations that carried a punitive discharge among the maximum punishments could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in- lieu of trial by court-martial. The Manual for Courts-Martial in effect at the time showed the maximum punishment for an absence for more than 30 days included a punitive discharge. b. The ABCMR is not authorized to grant requests for upgraded characters of service solely to make the FSM eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, her arguments and assertions, and the FSM's service record in accordance with the published equity, injustice, or clemency guidance. 5. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the 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: Although the veteran’s wife’s assertion is acknowledged, documentation is insufficient to make a determination. However, per liberal consideration, the Board can accept the report and consider an upgrade. b. The veteran was discharged on 15 July 1981 under Chapter 10, In Lieu of Court Martial, with an Under Other than Honorable characterization. The basis for separation was an AWOL from 05 January to 20 May 1981, returned by civilian authorities after a traffic stop. The veteran is deceased and his wife applied requesting a characterization upgrade asserting the veteran told her he was held down and sodomized in-service with a Sergeant covering it up. Due to the MST, the veteran decided not to return from Christmas leave. c. Due to the period of service, active duty electronic records are void. The electronic packet contained a May 1981 Chapter Mental Status Exam (MSE) clearing the applicant with no diagnosis. d. The applicant is not service connected and VA records are void. e. Available personnel records indicate at the time of separation, the applicant reported he made a mistake by enlisting and couldn’t cope with AIT and being away from home. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board considered the medical review. The Board noted that the applicant to be discharged from the service and indicated that he submitted no statements on his own behalf. The Board further noted that evidence of record is void any supporting law enforcement documentation for consideration of the request. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :ASE :MCH :JNM 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 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was 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. The regulation required commanders to allow the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was 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. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30) included a punitive discharge among its maximum punishments. 4. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (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. 5. 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) AR20210012803 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1