IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210013823 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. Additionally, he requests a personal appearance before the Board. 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 22 May 2021 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 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 he loved being an infantryman and would have stayed in if he would have been treated for alcoholism. He was discharged addicted to alcohol and did not know at the time that alcoholism was a disease. He should have been treated beforehand. 3. The applicant enlisted in the Regular Army on 27 November 1974. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * 14 May 1975, for failure to go at the time prescribed to his appointed place of duty on or about 3 May 1975 * 12 June 1975, for being absent from his place of duty on or about 7 June 1975 * 8 July 1975, for being absent from his unit from on or about 6 July to 7 July 1975 * 21 November 1975, for disobeying a lawful order on or about 10 November 1975 * 12 December 1975, for failure to go at the time prescribed to his appointed place of duty on or about 3 December 1975 5. Court-martial charges were preferred against the applicant on 3 August 1976, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * failure to go at the time prescribed to his appointed place of duty on or about 21 June 1976 * being absent without leave (AWOL) from on or about 6 July 1976 to on or about 19 July 1976 * being AWOL from on or about 2 August 1976 to on or about 3 August 1976 6. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 7. A DA Form 3082 (Statement of Medical Condition), dated 14 January 1977, shows the applicant noted there had been no change in his medical condition since his last separation examination. 8. The applicant was discharged on 4 February 1977, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. His DD Form 214 (Report of Separation from Active Duty) shows he was credited with 1 year, 9 months, and 8 days of net active service, and his service was characterized as UOTHC. 9. 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 evidence that would indicate the contrary. 10. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including post-traumatic stress disorder (PTSD). The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, or that the condition or experience may excuse or mitigate the discharge. 11. MEDICAL REVIEW: 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), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hard copy medical record was not available for review. A review of his service record indicates he completed a separation physical and was cleared for administrative separation. The applicant asserts his alcoholism should be considered as a mitigating factor. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service-connected disability rating of 70% for PTSD. 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 diagnosis at the time of his discharge. There is no behavioral health condition to consider with respect to mitigation. If subsequent documentation of his Alcohol Disorder was provided, Alcohol Use/Dependence Disorders are not mitigating factors for the misconduct that led to his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding there is no behavioral health condition to consider with respect to mitigation. If subsequent documentation of his Alcohol Disorder was provided, Alcohol Use/Dependence Disorders are not mitigating factors for the misconduct that led to his discharge. The Board determined there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board agreed there is insufficient evidence of in- service mitigation to overcome the misconduct. Based on the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice 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. ADMINISTRATIVE NOTE(S): N/A 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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 misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018, 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) AR20210013823 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1