IN THE CASE OF:  

		BOARD DATE:  27 January 2020

		DOCKET NUMBER:  AR20170000463


APPLICANT REQUESTS:  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)
*	third-party character reference letter 
*	20 pages of post-service medical records 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, 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:

	a.  He has changed his life from prison and drugs and alcohol abuse to a faithful 
church member and a productive citizen.  

	b.  He was discharged under less than honorable conditions.  At the time, he was 
told he could appeal for an upgrade; however, he was young and just wanted to go 
home.  There is no excuse, but he has come to learn that his circumstances were more 
than he could handle.  His circumstances consisted of:

*	his child dying of sudden infant death syndrome when he was a late teenager
*	fathering another child as a teenager; the child's mother relocated over 2,000 
miles away
*	newborn child and the separation from the child and mother
*	improperly slotted in a military occupational specialty (MOS) that was beneath 
his scores and abilities because of the "Buddy System"
*	exposed to alcohol at the early age of 18 which was the start of a 40-year 
drug and alcohol addiction
*	his discharge had a major impact on receiving gainful employment which 
enhanced his drug use

	c.  Although he could perform his combat MOS duties during field exercises, 
outside of deployment with too much time on his hand led to disaster with alcohol, 
partying, and being homesick (he would catch the bus for 10 hours there and 10 hours 
back just to spend 12 hours home).  Eventually that lifestyle took its toll and he was 
assigned to the Retraining Brigade and later confinement.

	d.  After his release, his troubled life began because employers shied away due to 
his military past.  Therefore, due to depression, he pursued drugs as an escape 
mechanism.  However, as his drug use progressed, so did the trouble, including prison, 
which created a very dark past.  After over 35 years he is drug-free, and for the first time 
he is making an impact as a husband (25 years), father, grandfather, great-grandfather, 
child, sibling, and friend.

	e.  He requests that the Board honor his request to upgrade his discharge so he 
can be eligible for benefits from the Department of Veterans Affairs (VA) and he can 
continue to help others with his story throughout the community and church.

3.  The applicant enlisted in the Regular Army on 23 June 1981.  He was awarded MOS 
12B (Combat Engineer) upon completion of initial entry training.  

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 
15, Uniform Code of Military Justice (UCMJ), on 15 March 1982 for disobeying a lawful 
order issued by his first sergeant.  

5.  On 28 October 1982, the applicant was found guilty by a summary court-martial of:

*	failing to go at the time prescribed to his appointed place of duty
*	two specifications of dereliction of his duties by willfully failing to remain awake 
while performing duties as barracks security guard
*	violating a lawful general regulation by wrongfully failing to secure his assigned 
weapon

6.  The sentence consisted of confinement at hard labor for 30 days, to be served at the 
U.S. Army Retraining Brigade (USARB), Fort Riley, KS, and reduction to the grade of 
private/E-1.  

7.  The applicant arrived at the USARB, Fort Riley, KS, on or around 3 November 1982.  

8.  The applicant received NJP under the provisions of Article 15, UCMJ on:

*	3 December 1982 for being disrespectful in deportment toward his superior 
noncommissioned officer by making interruptive remarks during class
*	7 December 1982 for failing to go at the time prescribed to his appointed place of 
duty 

9.  On 9 December 1982, the applicant was informed by his immediate commander that 
he was initiating action to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, based on a 
pattern of misconduct, with an under other that honorable conditions characterization of 
service.  The reasons cited by the commander for the proposed separation action were 
the applicant's established pattern of misconduct evidenced by a review of his military 
history which includes one summary court-martial and an Article 15.  The misconduct 
continued while at the USARB as evidenced by him receiving Articles 15 during training 
and his training performance which was unsatisfactory at best.  The applicant was 
advised of his right to consult with legal counsel and to request consideration of his 
case by a board of officers. 

10.  On 13 December 1982, the applicant received NJP under the provisions of Article 
15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.

11.  On 17 December 1982, the applicant consulted with legal counsel and he was 
advised of the basis for the contemplated separation action for misconduct, its effects, 
the rights available to him, and the effect of any action taken by him in waving his rights.  
He acknowledged he understood he may expect to encounter substantial prejudice in 
civilian life if a general under honorable conditions discharge was issued to him.  He 
also acknowledged he understood that as a result of issuance of a discharge under 
other than honorable conditions, he may be ineligible for many or all benefits as a 
veteran under both Federal and States laws.  He further acknowledged he understood 
that if he received a character of service of less than honorable, he may apply to the 
Army Discharge Review Board or this Board for an upgrade of his discharge; however, 
he realized that an act of consideration by either board did not imply his discharge 
would be upgraded.  

12.  The separation authority approved the recommendation for separation under the 
provisions of Army Regulation 635-200, chapter 14, and directed the issuance of an 
under other than honorable conditions discharge.  On 23 December 1982, he was 
discharged accordingly.  

13.  The applicant's DD Form 214 confirms he was discharged under the provisions of 
Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of 
misconduct, with his service characterized as under other than honorable conditions.
14.  The applicant provided 20 pages of post-service medical records showing a history 
of alcohol and drug abuse and an unspecified anxiety disorder.  He also provided a 
third-party character reference letter, authored by his brother, describing the challenges 
the applicant had to overcome during and post-service and requesting that the Board 
consider the time and the circumstances that led to his discharge in order to restore his 
name so he can continue to be a role model within their community.  

15.  On 23 December 2019, the Army Review Boards Agency clinical 
psychologist/medical advisor provided an advisory opinion.  The advisory found no 
evidence of a behavioral health condition during the applicant's time in service that 
would mitigate the acts of misconduct that led to his discharge.  A copy of the complete 
medical advisory was provided to the Board for their review and consideration.

16.  The applicant was provided a copy of the advisory opinion on 5 January 2020 and 
given an opportunity to submit comments.  He did not respond.

BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical advisory opinion and published DoD guidance for 
liberal consideration of discharge upgrade requests. The Board considered the 
applicant's statement, the statement from his brother, the medical records he provided, 
his record of service, the frequency and nature of his misconduct, and the reason for his 
separation. The Board considered the applicant's claims related to his behavioral health, 
and the review and conclusions of the medical advising official based on available 
medical records. The Board found insufficient evidence of in-service mitigating factors 
and concurred with the conclusion of the medical advising official regarding his 
misconduct not being mitigated by any behavioral health conditions.  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

: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, United States Code, 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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions, a pattern of 
misconduct consisting solely of minor military disciplinary infractions, a pattern of 
misconduct consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline, commission of a serious offense, and 
convictions by civil authorities.  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.  

	b.  Paragraph 3-7a states 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.
	c.  Paragraph 3-7b states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to a Soldier whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Service Discharge Review Boards and Service 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)	 AR20170000463


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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