IN THE CASE OF:  
BOARD DATE: 4 June 2021 DOCKET NUMBER: AR20210006049 
APPLICANT REQUESTS: The applicant requests an upgrade of his “under 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 three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. 
On 21 May 1986, the applicant enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded his military occupational specialty.  On or about 14 October 1986, the applicant was assigned to Fort Bliss, Texas. 

3. 
His record contains General Counseling forms that show he was counseled for: 


. not being ready for room inspection 
. failing to be at his appointed place of duty (he was found asleep in his room) 
. committing forgery and larceny by cashing a check at the Main Post 
Exchange that did not belong to him 
. breaking restriction on three (3) consecutive days 
4. 
On 9 January 1987, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk.  His punishment consisted of reduction to pay grade E-1 (suspended 90 days), to be automatically remitted if not vacated before 8 April 1987; forfeiture of $150.00 a month for two (2) months; restriction for 45 days (suspended for 90 days), to be automatically remitted if not vacated before 8 April 1987; and extra duty for 45 days. The applicant did not appeal. 

5. 
On 15 January 1987, the applicant received a General Officer Letter of Reprimand from Major General DRI.  In pertinent part, the letter of reprimand stated: 


a. 
The applicant was reprimanded for misconduct. Specifically, on 31 December 1986, he was apprehended on Fort Bliss for drunk driving.  A chemical test revealed that his blood alcohol content was .18 percent, in violation of Army Regulations and Texas law. 

b. 
The applicant’s actions were prejudicial to good order and discipline and tend to bring discredit upon the Armed Forces. His conduct raised serious questions concerning his maturity, judgment and self-discipline. By driving a motor vehicle while under the influence of alcohol the applicant endangered the health and safety of innocent members of the community. Such conduct was inexcusable and disgraceful. 


6. 
On 17 January 1987, a Military Police Blotter Report shows the applicant was apprehended, arrested, and charged with assaulting a taxi driver, refusing to pay his taxi fare, and resisting arrest. 

7. 
On or about 26 January 1987, the applicant’s suspension of the punishments of 


reduction to the pay grade of E-1 and 45-days restriction were vacated. The vacation of suspension was based on him assaulting the taxi driver on 17 January 1987. The applicant was reduced to private (E-1) effective 26 January 1987. 
8. On 13 February 1987, the applicant received a Letter of Reprimand from his commander.  In pertinent part, the letter of reprimand stated: 
a. 
The applicant was reprimanded for assault and failure to pay just debt which is punishable under Article 128 and 134 of the UCMJ. Actions such as these were not indicative of a Soldier in the U. S. Army. Reoccurrence of any similar acts on the applicant’s part could result in discharge from the Army, by Chapter 14, serious misconduct, with a general or dishonorable discharge. 

b. 
The behavior was not in keeping with the professional standards the Army expected of its Soldiers. Today's Army wanted only the best Soldiers of the highest quality.  If the applicant could not maintain his responsibilities, he could not expect to be able to assume the responsibilities of leadership. In the eyes of his Command, the applicant had brought disgrace and dishonor on himself. This was inexcusable misconduct that would not be tolerated at any level of his chain of command. 


9. 
On 19 February 1987, the applicant received NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty.  His punishment consisted of forfeiture of $100.00 (suspended), to be automatically remitted if not vacated before 

17 June 1987; to be restricted for 14 days (suspended), to be automatically remitted if not vacated before 17 June 1987; extra duty for 14 days (suspended), to be automatically remitted if not vacated before 17 June 1987. The applicant did not appeal.  

10. 
On 4 March 1987, a Bar to Reenlistment Certificate was approved and imposed against the applicant based on NJP that he received for drunk driving; and pending civilian trial for assault, failure to pay just debt and resisting arrest. He did not desire to submit a statement in his own behalf. 

11. 
On 10 March 1987, the applicant’s suspension of the punishments of forfeiture of 


pay, restriction and extra duty were vacated. The vacation of suspension was based on the applicant being arrested for forgery and larceny by the El Paso Police Department on or about 3 March 1987. 
12. On 18 March 1987, a Mental Status Evaluation shows: 
a. 
The applicant was evaluated on 12 March 1987 at the request of his Command, in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). During the evaluation the applicant reported a history of memory loss due to alcoholic blackouts and other alcohol related problems. He also reported a history of assault and resisting arrest. Due to his current and past behavior the applicant did not appear to have the behavioral capacity nor motivation to be retained in the Army. 

b. 
He was diagnosed with adjustment disorder with disturbance of conduct. The applicant was cleared for any administrative action deemed appropriate by his Command. The medical officer recommended Alcohol and Drug Abuse Prevention and Control Program follow-up for alcohol abuse. The Command’s decision to separate the applicant in accordance with AR 635-200 was strongly supported. 


13. On 2 April 1987, a final Criminal Investigation Command (CID) Report of 
Investigation for larceny and forgery revealed that, the applicant stole SW’s purse 
containing several personal identification cards; a credit card; driver's license, and a checkbook with four (4) blank checks. On 28 February 1987, the applicant went to the Fort Bliss Main Exchange and forged LW's signature to a check and negotiated it for $150.00.  On 1 March 1987, the applicant again went to the Fort Bliss Main Exchange, forged LW's signature and negotiated a second check for $150.00. On 2 March 1987, the applicant attempted to cash a third check at the same location; however, prior to the transaction, the applicant fled the Main Exchange leaving the check behind.  A Staff Judge Advocate officer familiar with the investigation opined that there was probable cause to title the applicant for cited offenses. 
14. 
On 29 April 1987, the applicant received NJP under the provisions of Article 15 of the UCMJ for breaking restriction on three (3) separate occasions. 

15. 
On 5 May 1987, the applicant was notified by his commander that his separation had been recommended under the provisions of Chapter 14-12b, AR 635-200, for patterns of misconduct. The specific reasons for the recommendation were:  the applicant had been punished under the provisions of Article 15 of the UCMJ for operating a vehicle while drunk, missing formations, breaking restrictions, and after CID completed an investigation, the applicant was held accountable for forgery and larceny.  The applicant also had assaulted and not paid a taxi cab driver, and the applicant had been in trouble for resisting arrest with the El Paso Police Department. 


He had also received a Bar to Reenlistment. The applicant’s commander advised him 
of his rights. 
a. 
Counsel advised the applicant of the basis for his proposed separation and its effects, the rights available to him and the effect of waiver of those rights, the applicant personally made the choices in the statement. The applicant elected not to submit statements in his own behalf. 

b. 
The applicant was medically cleared for administrative separation action.  He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He had the mental capacity to understand and participate in the proceedings; and he was mentally responsible. 

d. 
On 16 May 1987, his commander formally recommended him for separation under the provisions of AR 635-200, Chapter 14-12b, because of a pattern of misconduct, and recommended he be given a general discharge. 

e. 
The applicant’s chain of command concurred with the separation action and recommended a waiver of rehabilitative requirements. On 3 June 1987, the separation authority approved the applicant’s discharge and waived rehabilitative transfer requirements. The separation authority also directed the applicant be issued a General Discharge Certificate. 


16. 
On 24 June 1987, the applicant was discharged accordingly.  The DD Form 214 he signed for shows he was discharged for “misconduct-pattern of misconduct” under honorable conditions. He completed 1 year, 1 month, and 4 days of net active service. The applicant was not awarded a personal decoration. 

17. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil 

authorities. The regulation provides that, action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 

18. 
In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 

19. 
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 unspecified behavioral health conditions or symptoms he may have developed 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 Army Reserve (Delayed Entry Program) on 08 May 1986 and subsequently switched to the Regular Army on 21 May 1986. During his service, his awards included the Army Service Ribbon. His job position was as a Materiel Control and Accounting Specialist. His General Counseling Forms included room not ready for inspection (05 Nov 1986) and failure to be at place of duty (06 Nov 1986). He additionally received at least four Article 15’s for “operate a motor vehicle while drunk” (31 Dec 1986), failing to go to battalion headquarters (18 Jan 1987), “forgery and larceny” charge from El Paso Police Department (03 Mar 1987) and “break restriction” (12 Mar 1987). He received an Administrative Letter of Reprimand on 15 Jan 1987 for a “drunk driving” charge (31 Dec 1986), the same as the Article 15 noted above. He was incarcerated by El Paso Police Department for refusing to pay taxi cab fare and “struck (taxi driver) behind the head with an undetermined object and fled off-post.” This led to a second letter of reprimand, dated 13 Feb 1987. A CID Report of Investigation charged him with forgery and larceny for “stole woman’s purse with credit cards and checks.” It was further determined he forged her signature and cashed two checks (28 Feb 1987 and 01 Mar 1987). A Report of Mental Status Evaluation, dated 18 Mar 1987, concluded his behavior was normal and mood/affect unremarkable with normal thought content. He was diagnosed with “Adjustment Disorder with Disturbance of Conduct.” He received an Under Honorable Conditions (General) discharge on 24 Jun 1987 with narrative reason, Misconduct - Pattern of Misconduct. 
d. The VA electronic medical record, Joint Legacy Viewer (JLV) did indicate a 10% service connected disability with Tinnitus 10%. A Mental Health Note, dated 19 Oct 2020 indicated, “’Veteran reported that over the years he had numerous jobs, but had difficulty maintaining employment…Veteran reported that on the job he would have difficulty keeping up and his mind would wander…Veteran reported having a history of drug and alcohol use. Veteran reported use began while in the military…Veteran communicated that he has bad dreams since leaving the military. Veteran reported having dreams of ‘king kong chasing me.’ Veteran reported enduring poor treatment while in the military. Veteran reported serving prison time from 1990 - 2008 for theft/drug charges as well as violations.’” The Problem List indicated Insomnia Unspecified (15 Oct 2020) and Posttraumatic Stress Disorder, Unspecified (15 Oct 2020). 
e. Based on the information in the applicant’s medical record, it is the opinion of the Agency psychologist that there are no mitigating Behavioral Health conditions. Problems arising from PTSD often contribute to self-isolation, anger outbursts, minor assaultive behavior, intrusive memories, nightmares, interpersonal difficulties, poor sleep and self-medication with drugs/alcohol. Larceny, forgery and physical assault on a taxi driver are not part of the natural history or sequelae of PTSD, or other behavioral health conditions, and, as such, is not mitigated under Liberal Consideration. A discharge upgrade is therefore not 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. 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 review and conclusions of the medical advising official. The Board found insufficient evidence of in-service mitigation and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence to include the misconduct, some of which was violent in nature towards others, the Board determined 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 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :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. 
Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. The regulation provides that, action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other 

than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 

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. 


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