IN THE CASE OF:  BOARD DATE: 16 August 2021 DOCKET NUMBER:  AR20210007119 
APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an unspecified, presumably more favorable separation code and narrative reason for separation. 
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 5 October 2020 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 his discharge is a poor reflection of his service because he was promoted to sergeant (SGT)/E-5 and received several awards. It is an injustice because he was not afforded the proper mental health treatment needed to calm his psyche. 

3. 
The applicant enlisted in the Regular Army on 25 October 1977. 

4. 
The available record contains limited information on the applicant's first period of service; however, his record includes a DA Form 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ)) that shows he accepted nonjudicial punishment (NJP) on 22 January 1980, under the provisions of Article 15 of the UCMJ, for: 


. drunk driving, on or about 16 December 1979 . wrongful appropriation of a motor vehicle, on or about 16 December 1979 . resisting arrest, on or about 16 December 1979 . assault, on or about 29 December 1979 
. disobeying a direct order from a noncommissioned officer (NCO), on or about 29 December 1979 
. using disrespectful language toward an NCO, on or about 29 December 1979 
5. 
The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) indicates he was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 22 November 1983.  He was honorably discharged on 25 October 1984, for the purpose of immediate reenlistment in the Regular Army.  His DD Form 214 for this period is not available for review. 

6. 
The applicant reenlisted in the Regular Army on 26 October 1984. 

7. 
The applicant accepted NJP on 10 February 1986, under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana, between on or about 7 December 1985 and on or about 6 January 1986. The DA Form 2627 indicates he was serving in the rank/grade of SSG/E-6 at the time. 

8. 
An Accident/Incident Report, dated 13 February 1986, indicates the applicant was investigated for an alcohol related incident that occurred on or about 2330 hours, 12 February 1986. The applicant was shown to have damaged Government property and sustained personal injuries. 

9. 
The applicant was reduced in rank/grade from SSG/E-6 to SGT/E-5, consistent with punishment he received under the UCMJ. 

10. 
The applicant's available record does not contain a copy of the initial notification for separation or his acknowledgement and rights elections for a proposed separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14. 

11. 
The applicant's immediate commander, on 11 April 1986, formally recommended that the applicant be separated for misconduct. The commander cited the applicant's serious offense by using a controlled substance, marijuana. He noted the applicant had a checkered history of association with marijuana, either possession or use, and this had proven to be prejudicial to the good order and discipline of this unit. Due to the nature of past instances of involvement and/or association with marijuana and alcohol, the commander stated he believed it was not in the best interest of the U.S. Army to retain him. 

12. 
A Bar to Reenlistment was issued on 4 August 1986. The stated reasons were the two 1981 military police (MP) reports for possession of marijuana; a letter of disapproving the Army Good Conduct Medal due to his 22 January 1980 NJP; a 

13 February 1986 MP report of an alcohol related altercation at quarters; and a 10 April 1986 letter of initiation of a Chapter 14 discharge. 

13. 
Court-martial charges appear to have been preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 

14. 
The applicant's available record does not contain a record of the applicant's consultation with counsel or a copy of his request for discharge in lieu of trial by court-martial.  However, the court-martial convening authority approved a discharge for the good of the service on 28 October 1986.  He directed that the applicant be reduced to the lowest enlisted grade and that his service be characterized as UOTHC. 

15. 
The applicant’s DD Form 214 shows he was discharged on 7 November 1986, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and he was issued a UOTHC discharge. 

16. 
The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 

17. 
The applicant has not provided and the available record does not contain any evidence of a mental health complaint, treatment, or diagnosis. 

18. 
The Board should consider the applicant's prior period of honorable service for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance. 

19. 
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 PTSD he 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 Regular Army on 25 Oct 1977 and was honorably discharged on 25 Oct 1984. He subsequently reenlisted in the Regular Army on 26 Oct 1984. During his military career, he was assigned overseas to Germany from 29 Apr 1978 -05 Mar 1981. During his service, his awards included the Army Good Conduct Medal, Army Service Ribbon and Overseas Service Ribbon. His job position was as a Pershing Electrical Mechanical Repairer. He received an Article 15 for driving while intoxicated at Heilbronn, Germany and “wrongfully appropriate a 1974 VW” from a friend, as well as resisting arrest from the MP’s (16 Dec 1979). He was also charged with assault by “striking him on the hand and body with your fists,” disobeying an order to “leave the Club” and disrespectful language toward an NCO (29 Dec 1979). He received a second Article 15 for “wrongfully use marijuana” between 07 Dec 1985 and 06 Jan 1986. An Accident/Incident Report, dated 12 Feb 1986 indicated, “soldier was drinking heavily with SP4…heard a crash, went back into the room and saw SSG Toms leaning against wall bleeding…had put both fists through the glass of his coffee table.” His Request for Discharge for the Good of the Service was approved on 28 Oct 1986. He received an Under Other Than Honorable Conditions discharge on 07 Nov 1986 with narrative reason, For the Good of the Service. 

d. 
The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s).There was no available data for medical or behavioral health notes, as well as no data on the Problem List. 

e. 
Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist there is insufficient evidence to support the presence of PTSD or any other behavioral health conditions which led to his Under Other Than Honorable Conditions discharge. No medical records supporting the presence of significant psychological symptoms or diagnoses during his time in service were provided for review. Additionally, wrongful appropriation of a vehicle and physical assault is not part of the natural history or sequelae of PTSD and most other behavioral health conditions and, as such, is not mitigated under Liberal Consideration. Even so, the Agency psychologist will gladly revisit the applicant’s request should he, in the future, submit medical documentation of PTSD or any other behavioral health condition(s) related to his military service. An upgrade is therefore not recommended at this time. 


BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 

2. 
The Board carefully considered the applicant's request, supporting documents, evidence in the records, medical advisory, and published DoD guidance on liberal consideration when reviewing discharge upgrade requests.  After reviewing all available documentation, the Board found insufficient evidence of in-service mitigating factors for the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 
:XX :XX :XX 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

3. 
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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c. 
Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 


4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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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