IN THE CASE OF: BOARD DATE: 6 October 2021 DOCKET NUMBER: AR20210005074 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record), 17 June 2020, 12 August 2020, and 13 August 2020 * Applicant memorandum, 8 July 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number on 7 November 2013. 2. The applicant provided new documentary evidence and new arguments that were not previously considered by the Board that warrant consideration at this time. 3. The applicant states: a. He has never been in trouble with the law and has had employment for over 25 years. He is active in the community. b. He was very young when he entered the Army and everything was new and scary. He has turned into a better man. He has certificates but had a house fire and lost everything. 3. A review of the applicant's service records shows: a. On 17 January 1985, he enlisted in the Regular Army for a period of 3 years at 19 years of age. He was trained in and awarded military occupational specialty 64C (Motor Transport Operator). He attained the grade/pay grade private 2/E-2. b. On 18 July 1985, he arrived in Germany on a permanent change of station. c. His status was reported changed (DA Form 4187 Personnel Action): * on 4 September 1985 from present for duty to absent without leave (AWOL) * on 2 October 1985, from AWOL to dropped from the rolls * on 4 December 1985, from dropped from the rolls to present for duty after having surrendered to military authorities at d. His DD Form 458 (Charge Sheet) is not available for review; however, other evidence shows he was court-martial charges were preferred against him for violating one or more charges/specifications of the Uniform Code of Military Justice. e. On 4 December 1985, he acknowledged he had been counseled on the requirements for completion of a medical examination prior to separation. He further understood that if he had been requesting a discharge for the good of the service under provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations), he was not required to undergo a medical examination. He elected not to undergo a medical examination. e. The applicant's request for discharge and acknowledgement of rights memorandum, and the approval authority memorandum are not contained in the available records. f. His records contain orders 33-12, 25 February 1986, issued by Headquarters (HQ), U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, reduced him to grade/pay grade private/E-1, under provisions of AR 635-200, chapter 10 and an Under Other Than Honorable Conditions Discharge Certificate. g. On 21 March 1986, he was discharged. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service- in lieu of trail by court-martial, with an under other than honorable conditions characterization of service. He was credited with completing 11 months and 4 days of net active service. He had time lost from 3 September 1985 to 3 December 1985 (90 days) and 103 days of excess leave. He was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar. h. On 23 March 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge. i. On 7 November 2013, (ABCMR Docket, the ABCMR denied his request for an upgrade of his discharge. In making its decision it noted that issuance of a discharge under the provisions of AR 635-200, Chapter 10 required he voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial. It was presumed that all requirements of law and regulation were met and his rights were fully protected through the discharge process. i. On 9 April 2021, the applicant's counsel responded to an email request from Army Review Boards Agency to submit additional documents, stating the applicant mailed his notarized statement on 25 January 2021 and also mailed medical documents to the Board. The medical records are not contained with the three applications received from the applicant. 4. By regulation (AR 635-200), 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his Under Other Than Honorable Conditions discharge to Honorable due to Post-Traumatic Stress Disorder (PTSD). The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his DD Form 214, and the VA electronic medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Regular Army on 17 January 1985 and was discharged on 21 March 1986 under the provisions of Army Regulation 635-200, Chapter 10, For the good of the service – In lieu of court-martial. His service was characterized as Under Other Than Honorable Conditions. The complete facts and circumstances surrounding his discharge, including his specific court-martial charges were not available for review. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. d. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. e. After review of all available information at this time, the specific circumstances that led to applicant’s discharge are unknown and therefore, mitigation cannot be determined. Furthermore, it is the opinion of the Agency psychologist that there is insufficient evidence to support that the applicant had PTSD or any other mitigating behavioral health condition at the time of service. 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, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, and the reason for separation. The Board considered the medical records and the 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. 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 :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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3-7 provided: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Only the honorable characterization may be awarded a member upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. (2) 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 separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 10 stated a member who has committed an offense or offenses, the punishment of which under the UCMJ and the Manual for Court Martial, 1969 (Revised Edition) includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final actions by the court-martial convening authority. (1) A medical examination is not required but may be requested by the member under Army Regulation 40-501 (Medical Services – Standards of Medical Fitness), chapter 10. A member that requests a medical examination must also have a mental status evaluation before discharge. (2) Commanders will insure that a member will not be coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the member concerning: * the elements of the offense or offenses charged * burden of proof * possible defenses * possible punishments * provisions of Chapter 10 * requirements of voluntariness * type of discharge normally given under provisions of Chapter 10 * rights regarding the withdrawal of the member's request * loss of Veterans Administration benefits * prejudice in civilian life because of the characterization of the discharge (3) The separation authority will be a commander exercising general court- martial jurisdiction or higher authority. However, authority to approve discharges in cases in which a member has been AWOL for more than 30 days and has been dropped from the rolls of his or her unit as absent in desertion, and has been returned to military control, may be delegated to the commander exercising special court-martial convening authority over the member. (4) An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the separation authority may direct a general discharge certificate, if such is merited by the member's overall record during the current enlistment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005074 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1