IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220002251 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) . Two (2) character statements 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 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 effect: a. Prior to absenting himself without leave (AWOL), he had honorable service. He was experiencing problems with fellow Soldiers, most of which was his fault. However, he was young and did not know the affect a bad discharge would have on his life. He thought he had to have a lawyer to get his discharge upgraded, so he never did anything to get his discharge upgraded. b. He apologizes for the time he was AWOL. He wishes he could go back and make a different decision. Upon returning from Germany, he was very unhappy and did not handle it well. He now knows that he should have sought out counseling rather than letting his military career take a back seat. c. He has a good life now and has been drug free for 15 years. He realizes that the drugs were the reason for his problems and him going AWOL. He would like to tell his grandkids he served honorably in the military. He would also like to be able get a West Virginia Disable Military Veteran (DMV) license plate. 3. The applicant provides two character statements, written by acquaintances, who speak of his character as being kind, caring, charitable, and a supportive friend. 4. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 9 July 1980. b. He accepted nonjudicial punishment (NJP) as follows: . On 22 June 1983, for absenting himself, without authority, from his unit on or about 6 June 1983 until on or about 13 June 1983; he was reduced in grade to private2 (E-2) . On 15 July 1983, for absenting himself, without authority, from his unit on or about 24 June 1983 until on or about 29 June 1983; he was reduced in grade to private (E-1) c. DD Form 458 (Charge Sheet), dated 15 December 1983, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 23 August 1983 to on or about 9 December 1983. d. On 15 December 1983, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to her. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations -Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: . by requesting discharge, he was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of an undesirable discharge . he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, 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 was advised he could submit any statements he desired in his own behalf; he did not submit any statements e. The separation authority approved the applicant's request for discharge on 3 January 1984, under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. f. His DD Form 214 shows he was discharged on 18 January 1984, under the provisions of AR 635-200, chapter 10, for the good of the service, and his service was characterized as under other than honorable conditions. He completed 2 years, 7 months, and 10 days of net active service this period and he had lost time from 6 August 1980 to 2 March 1981, from 6 June 1983 to 12 June 1983, from 24 June 1983 to 28 June 1983, from 12 August to 18 August 1983, and from 23 August 1983 to 8 December 1983. 5. There is no evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions that mitigated his misconduct, Substance Abuse and occupational stress. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) He enlisted in the Regular Army on 9 July 1980; 2) The applicant was found to be AWOL twice; 3) On15 December 1983, court-martial charges were preferred against the applicant for being AWOL; 4) He was discharged on 18 January 1984, under the provisions of AR 635-200, chapter 10, for the good of the service, and his service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was reviewed. No additional hardcopy military or civilian treatment records were provided for review. e. The applicant asserts he was experiencing substance abuse and occupational stress while on active service, and he went AWOL to avoid his difficulties with other Soldiers. A review of JLV is void of BH related treatment records. The applicant did not provide any documentation or discuss any diagnosis or treatment of substance abuse from a civilian provider. The applicant has no service-connected disabilities. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing substance abuse and occupational stress that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends his substance abuse and occupational stress occurred while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? Partially. There is no evidence supporting the applicant was experiencing substance abuse and occupational stress while on active service. JLV is void of any history of VA medical treatment, and there are no civilian medical records to support his contention. The applicant did go AWOL, which can be a sequel to his reported mental health conditions, but this is not sufficient to establish a history of mental health conditions during his active service. However, the applicant contends he was experiencing mental health difficulties that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration 7. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 8. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. 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. 9. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. One possible outcome was to deny the applicant’s request based upon the absence of evidence supporting his claim of alcohol dependence or mental health challenges. However, the majority of Board members non-concurred with the medical advisory opinion in that the applicant served honorably for two years prior to the misconduct and indicated the challenges began following his return. Based upon the preponderance of the evidence available for review, and notwithstanding the recommendation of the advisory official, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 18 January 1984 showing his character of service as under honorable conditions (General). 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 Army Board for Correction of Military Records (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 635-200 (Personnel Separations -Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides 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 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 4. Army Directive 2014-28 (Request to Upgrade Discharge by Veterans claiming PTSD), dated 3 November 2014, states the office of the Surgeon General will provide expert guidance to ARBA on clinical manifestations of PTSD and behavioral indicators to help ARBA assess the presence of PTSD and its potentially mitigating effects. When requested, the office will provide consultation to supplement ARBA’s effort on complex cases that exceed ARBA’s capabilities. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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//