IN THE CASE OF: BOARD DATE: 13 September 2021 DOCKET NUMBER: AR20210008803 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket on 27 January 2000. Specifically, he requests his undesirable discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 26 October 2020, with a self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case in Docket on 27 January 2000. 2. The applicant states: a. He was physically, mentally, and/or emotionally abused as a child by his aunt, his sister's husband, and in a foster home. He joined the Army to get away from the abuse but felt that boot camp was just a continuation of the abuse. The perceived abuse in the military caused him to start drinking, which in turn led to his periods of absence without leave (AWOL). b. He received two summary court-martials but did not receive any help with his mental pain and loneliness. He continued to drink and by age 19, he was a full blown alcoholic. He stole money from a fellow Soldier and again went AWOL. With his return, he was offered either a court-martial or to submit a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He elected the chapter [administrative discharge]. c. Following his discharge, he had problems with the law and in 1973, he was sentenced to prison, given parole, which he broke and was sent back to prison. This pattern has been his life since then. He believes that if the Army had helped him, his life would have been different. 3. Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request for reconsideration of a determination of a Board under this Section, no matter when filed, shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 4. Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's contention that he suffers from a mental condition that impaired his ability to serve and the revisions of clemency policies are new arguments warranting reconsideration. 5. The applicant enlisted in the Regular Army on 25 April 1969. 6. The applicant accepted nonjudicial punishment (NJP) on 3 September 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * disobeying a lawful order from a noncommissioned officer, on or about 31 August 1969 * stealing $10.00 from a fellow Soldier, on or about 1 September 1969 * disobeying a lawful order from a noncommissioned officer, on or about 2 September 1968 7. Before a special court-martial on or about 23 October 1970, at Fort Ord, CA, the applicant was found guilty of being AWOL, from on or about 31 January 1970 until on or about 4 September 1970. 8. Before a summary court-martial on or about 24 November 1970, at Fort Ord, CA, the applicant was found guilty of using disrespectful language toward a commissioned officer, on or about 12 November 1970. 9. The applicant’s record is void of the facts and circumstances that ultimately led to his discharge. However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 June 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and he was issued a DD Form 258A (Undesirable Discharge Certificate). 10. 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. 11. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 12. During an Army Discharge Review Board (ADRB) personal appearance hearing on 25 May 1978: a. Counsel noted that the applicant had received two waivers to enlist, one for being under the weight standards and one for a pending civil felony charge. b. Counsel reported that the applicant had numerous juvenal offenses and had been arrested at least twelve times and that several of the applicant's periods of AWOL ended with a civilian apprehension. c. The applicant reported he had started drinking at age nine. He claims that he was a constant drinker and drank excessively at Fort Eustis, although his superiors where not aware that he was a heavy drinker. At this time, as he did not yet know he was an alcoholic, he had not requested help from the Army. d. The applicant stated that during his periods of AWOL, he became involved in using drugs, stealing cars, burglary, and was eventually imprisoned for his felonies. His burglaries show his alcohol involvement. He realized he was an alcoholic when imprisoned the first time [post-service] and he commenced treatment for alcoholism at that time. e. The ADRB denied his request for a discharge upgrade. 13. The ABCMR denied the applicant's request for an upgrade on 27 January 2000. His request, at that time, was based on his contention that he was only 17 years old and very immature when he enlisted in the Army. He was unaware of the ramifications of his decision when he requested the Chapter 10 discharge, and he was too young and immature to make a good decision. 14. The ABCMR administratively closed a request for reconsideration on 28 December 2000, citing the reconsideration provisions in effect at the time. His contention was that he was a conscientious objector and should receive an honorable discharge under Public Law 95-126 and the Department of Defense (DoD) Special Discharge Review Program (SDRP) of 4 April 1977. In his application, he stated he did not make the Army aware of this fact due to fear of retaliation or being called a "Red." He contended that everything he did, such as the AWOL periods and saying he stole from a fellow Soldier, was a lie to keep from being sent to Vietnam. 15. The applicant has not provided and the record does not contain any evidence that he was or is a conscientious objector, that he met the requirements for consideration under the SDRP, or that he had or has a psychological or psychiatric condition that would mitigate his repeated and serious misconduct. 16. The Board should consider the applicant's statement for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket on 27 January 2000. Specifically, he requests his undesirable discharge be upgraded to an under honorable conditions (general) discharge. b. The applicant states: (1) He was physically, mentally, and/or emotionally abused as a child by his aunt, his sister's husband, and in a foster home. He joined the Army to get away from the abuse but felt that boot camp was just a continuation of the abuse. The perceived abuse in the military caused him to start drinking, which in turn led to his periods of absence without leave (AWOL). (2) He received two summary court-martials but did not receive any help with his mental pain and loneliness. He continued to drink and by age 19, he was a full blown alcoholic. He stole money from a fellow Soldier and again went AWOL. With his return, he was offered either a court-martial or to submit a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He elected the chapter [administrative discharge]. (3) Following his discharge, he had problems with the law and in 1973, he was sentenced to prison, given parole, which he broke and was sent back to prison. This pattern has been his life since then. He believes that if the Army had helped him, his life would have been different. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 26 October 2020, with a self-authored statement d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 25 April 1969 and was discharged on 24 June 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. g. The applicant accepted nonjudicial punishment (NJP) on 3 September 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * disobeying a lawful order from a noncommissioned officer, on or about 31 August 1969 * stealing $10.00 from a fellow Soldier, on or about 1 September 1969 * disobeying a lawful order from a noncommissioned officer, on or about 2 September 1968 h. Before a special court-martial on or about 23 October 1970, at Fort Ord, CA, the applicant was found guilty of being AWOL, from on or about 31 January 1970 until on or about 4 September 1970. i. Before a summary court-martial on or about 24 November 1970, at Fort Ord, CA, the applicant was found guilty of using disrespectful language toward a commissioned officer, on or about 12 November 1970. j. During an Army Discharge Review Board (ADRB) personal appearance hearing on 25 May 1978: (1) Counsel noted that the applicant had received two waivers to enlist, one for being under the weight standards and one for a pending civil felony charge. (2) Counsel reported that the applicant had numerous juvenal offenses and had been arrested at least twelve times and that several of the applicant's periods of AWOL ended with a civilian apprehension. (3) The applicant reported he had started drinking at age nine. He claims that he was a constant drinker and drank excessively at Fort Eustis, although his superiors where not aware that he was a heavy drinker. At this time, as he did not yet know he was an alcoholic, he had not requested help from the Army. (4) The applicant stated that during his periods of AWOL, he became involved in using drugs, stealing cars, burglary, and was eventually imprisoned for his felonies. His burglaries show his alcohol involvement. He realized he was an alcoholic when imprisoned the first time [post-service] and he commenced treatment for alcoholism at that time. (5) The ADRB denied his request for a discharge upgrade. k. The ABCMR denied the applicant's request for an upgrade on 27 January 2000. His request, at that time, was based on his contention that he was only 17 years old and very immature when he enlisted in the Army. He was unaware of the ramifications of his decision when he requested the Chapter 10 discharge, and he was too young and immature to make a good decision. l. The ABCMR administratively closed a request for reconsideration on 28 December 2000, citing the reconsideration provisions in effect at the time. His contention was that he was a conscientious objector and should receive an honorable discharge under Public Law 95-126 and the Department of Defense (DoD) Special Discharge Review Program (SDRP) of 4 April 1977. In his application, he stated he did not make the Army aware of this fact due to fear of retaliation or being called a "Red." He contended that everything he did, such as the AWOL periods and saying he stole from a fellow Soldier, was a lie to keep from being sent to Vietnam. m. The applicant has not provided and the record does not contain any evidence that he was or is a conscientious objector, that he met the requirements for consideration under the SDRP, or that he had or has a psychological or psychiatric condition that would mitigate his repeated and serious misconduct. n. JLV contains no records. o. The applicant did not supply any medical records or documentation to support his claim he suffered from any behavioral health issue while in military service. p. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis. The applicant met retention standards at the time of discharge. Under liberal guidance, the applicant does not have any mitigating BH factor for misconduct (AWOL, disrespecting a commissioned officer, or stealing). BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board reviewed and concurred with the Agency Behavioral Health advisor finding insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of evidence available for review, the Board determined 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 to amend the decision of the ABCMR set forth in Docket on 27 January 2000. 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. 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 and states: a. 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. b. A request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. 2. 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 was normally considered appropriate. 3. The Under Secretary of Defense (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20210008803 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1