BOARD DATE:  14 July 2020

		DOCKET NUMBER:  AR20180009499


APPLICANT REQUESTS: Correction of his record to show an upgrade to his under 
other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

DD Form 149 (Application for Correction of Military Record).

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 (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 pertinent part, he was discharged due to being absent 
without leave (AWOL).  He had to write a letter stating he was AWOL in order to not get 
a court-martial.  He was a good Soldier who was fighting depression and was not 
getting treatment.  He had surgery on his knee that was not performed correctly in the 
military and believes this was the main cause of his depression.

3.  A review of the applicant's official records shows the following:

	a.  On 30 November 1971, the applicant enlisted in the Regular Army.

	b.  On or about 9 April 1973, the applicant departed his unit in an AWOL status and 
on 7 May 1973, he was dropped from the Army rolls (DFR) as a deserter.

	c.  On 21 May 1973, the applicant surrendered to civil authorities and was 
subsequently returned to military control.  He was reassigned to his unit, for disposition 
of his case.

	d.  On 23 May 1973, DD Form 458 (Charge Sheet) was prepared by the 
Commander, 595th Medical Company (Clearing),.  The applicant was charged with 
violating Article 86 of the Uniform Code of Military Justice (UCMJ), one specification of 
being AWOL from on or about 9 April 1973 to on or about 21 May 1973.

	e.  On 19 June 1973, the applicant completed a self-authored letter that stated, in 
pertinent part:

		(1)  He entered the Army in November 1971 and completed basic training at Fort 
Dix, NJ.  After he completed basic training he was sent to Fort Sam Houston, TX for 
advanced individual training.  When he completed advanced individual training he 
received orders for Germany, but when he arrived at the overseas replacement station 
he was admitted to the Army hospital because of a knee he injured in basic training and 
again in advanced individual training.  He was operated on in June and was discharged 
from the medical hold in September 1972, and from there he was sent to.

		(2)  He was requesting the discharge because while he has been in the Army, he 
has been constantly depressed and growing bitter.  He does not have a choice in his 
own lifestyle.  He cannot possibly feel free or begin to enjoy life while a member of the 
U.S. Army.  He admitted to being AWOL from 9 April – 21 May 1973.

	f.  On 14 June 1973, the applicant consulted with legal counsel and he was advised 
of the basis for the contemplated trial by court-martial for an offense punishable by a 
bad conduct discharge or a dishonorable discharge, the maximum permissible 
punishment authorized under the UCMJ, the possible effects of a request for discharge, 
and of the procedures and rights that were available to him.  Following consultation with 
legal counsel, he requested discharge under the provisions of Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the 
service - in lieu of trial by court-martial.  In his request for discharge the applicant 
indicated:

*	he was making this request of his own free will and had not been subjected to 
any coercion whatsoever by any person
*	he understood if the discharge request was approved, he could be deprived 
of many or all Army benefits, that he could be ineligible for many or all 
benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State 
laws
*	he understood if the discharge request was approved, he could be discharged 
under other than honorable conditions and furnished an Undesirable 
Discharge Certificate
*	he may expect to encounter substantial prejudice in civilian life because of an 
under other than honorable discharge

	g.  On 21 June 1973, the applicant completed SF 93 (Report of Medical History) 
indicating he had a menisectomy on his right knee, but no indication of depression.

	h.  On 25 June 1973, the applicant underwent a mental health evaluation.  His 
Report of Mental Status Evaluation indicates he had a normal behavior; he was fully 
alert, fully oriented, had a level mood, clear thinking processes, and he had normal 
thought content and good memory.  The applicant was felt to not have a significant 
psychiatric disease.  He was found to be mentally responsible, able to distinguish right 
from wrong and adhere to the right.  He had the mental capacity to understand and 
participate in board proceedings and he met the retention standards prescribed in 
chapter 3, of AR 40-501 (Standards of Medical Fitness).

	i.  The applicant’s immediate commander recommended approval and 
recommended an undesirable discharge.

	j.  On 26 July 1973, the separation authority approved the applicant’s discharge 
under the provisions of AR 635-200, chapter 10, and directed issuance of an 
undesirable discharge.  On 15 August 1973, the applicant was discharged accordingly.

	k.  The applicant's DD Form 214 (Armed Forces of the United States Report of 
Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, 
chapter 10, with an under other than honorable conditions characterization of service.  
His DD Form 214 also shows he completed 1 year, 5 months, and 23 days of active 
creditable service with lost time from:

*	29 July – 5 September 1972
*	26 – 27 February 1973
*	9 April – 20 May 1973

4.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military records.  The Armed Forces Health Longitudinal 
Technology Application (AHLTA) & Health Artifacts Image Management Solutions 
(HAIMS) was not in use at the time of his service.  A review of his hard copy military 
medical records indicates he completed a physical exam on 21 Jun 1973 and met 
retention standards.  On 25 Jun 1973, he was evaluated by a psychiatrist and did not 
meet criteria for any mental health conditions and met retentions standards IAW AR 40-
501.  A review of VA’s Joint Legacy Viewer (JLV) indicates he has not been evaluated 
or treated in the VA system.  He does not have a service connected disability rating.  In 
accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum 
and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a 
behavioral health condition at the time of his discharge.  He met retention standards at 
the time of his discharge.  There is no behavioral health diagnosis to consider with 
respect to mitigation of the misconduct that led to his discharge.  

5.  See applicable references below.

BOARD DISCUSSION:

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

1.  The Board reviewed the applicant’s contentions, the Medical Advisory opinion, and 
the evidence of record.  The Board considered whether there were errors in the 
discharge process warranting a discharge upgrade and whether a discharge upgrade is 
otherwise warranted in the interest of justice.  The Board found the applicant has not 
demonstrated by a preponderance of evidence an error or injustice warranting the 
requested relief, specifically an upgrade of his under other than honorable conditions 
discharge.

2.  The Board agreed with the Medical Advisory opinion that there is insufficient 
evidence of his medical concerns during his period of service.  Therefore, there is 
insufficient evidence of a medical disability or condition that would support a change to 
the character and/or reason for the discharge in this case.

?
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, 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 sets forth the basic authority for the separation of 
enlisted personnel.

	a.  Paragraph 1-9d states that an honorable discharge is given when the quality of 
the Soldier’s service has generally met standards of acceptable conduct and duty 
performance.

	b.  Paragraph 1-9e states that 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.

	c.  Chapter 10 provides 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 at any 
time after the charges have been preferred.  The request must have included the 
individual's admission of guilt.  A discharge under other than honorable conditions is 
normally considered appropriate.

3.  On 25 August 2017, the Office of the Under Secretary 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 post-
traumatic stress disorder; traumatic brain injury; sexual assault; and sexual harassment.  
Boards were directed 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 that misconduct which led to the discharge.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180009499


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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