BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20180016091 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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 26 September 2018, with self- authored statement 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 issues stem from being a 17 year old kid exposed to alcohol and drugs, which was a widespread problem in the post-Vietnam era. Instead of being offered treatment and rehabilitation, he was punished, reprimanded, and subsequently discharged. 3. The applicant enlisted in the Regular Army on 15 July 1980. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 3 September 1981, for leaving his place of duty without proper authority * on 8 June 1982, for using disrespectful language toward a superior noncommissioned officer (NCO) and disobeying a lawful order from a superior NCO * on 5 April 1983, for assaulting a fellow Soldier 5. Before a summary court-martial on 1 March 1983, in the Federal Republic of Germany, the applicant was found guilty of wrongful possession with intent to distribute hashish. His sentence included confinement for 30 days. 6. A Training Progress Note, dated 4 April 1983, shows that during the applicant's period of confinement, he expressed a great deal of anger over his proposed discharge and denied involvement in the fight that led to his third NJP. He was afforded a mental health evaluation that was within normal limits. 7. The applicant's unit commander notified the applicant on 6 April 1983 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct. His commander cited his two NJPs, summary court-martial, and poor performance prior to and after entering training at the correctional activity. 8. A Training Progress Note, dated 7 April 1983, lists the applicant's prior misconduct as including the above referenced NJPs, his summary court-martial, and that he had his check cashing privileges suspended. It further states he had unsatisfactory evaluations in the retraining brigade and it was recommended that he be discharged. 9. The applicant consulted with legal counsel on 8 April 1983. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived that option. 10. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records and provided the following findings and recommendations: The applicant is not registered in the VA’s Joint Legacy Viewer (JLV) and has no records in iPERMS. The Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the time of the applicant’s service. A review of the available documentation did not find medical evidence to support a behavioral health diagnosis at the time of his discharge. On 4 Apr 1983, he was evaluated by a social worker and determined to have no psychiatric diagnoses, thus meeting retention standards IAW AR 40-501 from a behavioral health perspective. There is no behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. 11. The separation authority approved the applicant's discharge on 8 April 1983, under the provisions of Army Regulation 635-200, Chapter 14, and waived further rehabilitation and counseling. 12. The applicant was discharged on 8 April 1983, under the provisions of Army Regulation 635-200, Chapter 14. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms his service was characterized as UOTHC. 13. The applicant has not provided and the available service medical records do not include any reference to any mental, psychological, or psychiatric concerns or references, and there are no medical records available that indicate the applicant was treated for drug or alcohol abuse while in the service. 14. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of a behavioral health diagnosis, 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 : 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 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. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. d. Paragraph 14-12b provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016091 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016091 6 ABCMR Record of Proceedings (cont) AR20180016091 4