IN THE CASE OF: 
BOARD DATE: 30 January 2023 
DOCKET NUMBER: AR20220008718 


APPLICANT REQUESTS: change his character of service from under other than honorable conditions to honorable. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record), 10 May 2022

•DD Form 214 (Certificate of Release or Discharge from Active Duty)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S.Code, 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he entered the service weeks after turning 17. A couple ofthings occurred which resulted in him being discharged. His fingers were ripped in atank accident. One day he was walking back to the base, and an officer offered him aride and sexually assaulted him. While at a field exercise he had a panic attack and leftthe site. He feared the man would find him again. When he returned to his unit he wascharged with desertion, fined and received extra duty. He completed the extra dutyduring the week but would not do it on the weekend. He was discharged. He shouldhave reported the assault, but he was young and scared. This ruined his life; he useddrugs and alcohol to forget.

3.On 22 June 1972, the applicant enlisted in the Regular Army. He completed trainingand was awarded military occupational specialty 11E (Armor Crewman).

4.On or about 19 September 1972, the applicant was assigned to B Company,2nd Battalion, 67th Armor 2nd Armored Division, at Fort Hood, TX.

5.On 5 March 1973, the applicant accepted nonjudicial punishment (NJP) under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, on 14November 1972 for stealing a .45 caliber pistol, and absent without leave (AWOL) untilon or about 20 November 1972. His punishment consisted of a forfeiture of $120.00 for a period of two months, and 45 days extra duty.  

6.On 4 April 1973, the applicant accepted NJP under the provisions of Article 15 of theUCMJ for, on 24, 25, and 30 March 1973 failing to go at the time prescribed to hisappointed place of duty. His punishment consisted of 14 days restriction and extra duty.

7.On 1 May 1973, a DA Form 2496 (Disposition Form) which shows, a completereview of physical and mental examinations failed to reveal any defects which wouldhave contributed to applicant’s misconduct. According to Army Regulation (AR) 40-501(Standards of Medical Fitness), applicant is physically and mentally fit for duty withoutprofile limitations. Applicant was and is responsible for his acts, able to understand andparticipate in board proceedings.

8.The applicant’s record is void of the specific facts and circumstances surrounding hisdischarge processing. However, it does contain a DD Form 214 which shows he wasdischarged on 19 June 1973, UP of AR 635-200 (Personnel Separations), chapter 10,for the good of the service, in lieu of trial by court-martial, with the issuance of an underother than honorable conditions characterization of service (Separation Code 246 (nowKFS)), and Reentry Codes 3/3B/1B). He completed 11 months and 19 days of activeservice. His DD Form 214 also shows he had lost time from 14-19 November 1972; and9-11 April 1973.

9.There is no indication he petitioned the Army Discharge Review Board for review ofhis discharge processing within that board’s 15-yearstatute of limitations.

10.By regulation (AR 635-200), a member who has committed an offense for which theauthorized punishment includes a punitive discharge may submit a request fordischarge for the good of the service in lieu of trial by court-martial. The request may besubmitted at any time after charges have been preferred and must include theindividual's admission of guilt. A discharge under other than honorable conditions isnormally considered appropriate.

10.In reaching its determination, the Board can consider the applicant’s petition andhis service record in accordance with the published equity, injustice, or clemencydetermination guidance.

11.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting an upgrade of UOTHCdischarge to honorable. 

b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 

(1)Applicant asserts that during his military service his fingers were ripped in a tankaccident.  In addition, one day while walking back to base an officer offered him aride and sexually assaulted him.  While on a field exercise he had a panic attackand left the site fearing the man would find him again.  When he returned to hisunit, he was charged with desertion with punishment including extra duty.  Hecompleted the extra duty during the week but would not do it during the weekendand was eventually discharged.  He notes he should have reported the assaultbut was young and scared.  The event ruined his life and he used drugs andalcohol to forget.

(2)On 22 June 1972 he enlisted into the Regular Army

(3)On 5 March 1973 he received NJP for, on 14 November 1972 stealing a .45caliber pistol and AWOL until on or about 20 November 1972.

(4)On 4 April 1973, he accepted NJP for, on 24, 25 and 30 March 1973 failing to goat the time prescribed to his appointed place of duty.

(5)Records show a complete review of physical and mental examinations failed toreveal any defects which would have contributed to his misconduct; he wasdeemed physically and mentally fit per AR 40-501.

(6)Applicant’s record is void of the specific facts and circumstances surroundingdischarge processing.  His DD214 shows he was discharged 19 June 1973 UP ofAR 635-200 chapter 10 for the good of the service, in lieu of trial by court-martial,UOTHC.



c.Supporting Documents

Per DD Form 149 applicant asserts sexual assault/harassment related to his request.  Narrative data associated with request summarized in ROP.  DA Form 2496 dated 1 May 1973 indicates upon review of physical and mental examinations there are no defects contributory to misconduct and applicant was deemed physically and mentally fit per AR 40-501. 

There are no additional medical or psychiatric records found within supporting documents. 

d.AHLTA

The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. 

e.JLV

Available VA records were reviewed via JLV.  There was no indication of any service-connected conditions, and the record was void of relevant clinical data. 

f.Other

Query of HAIMS did not return any documents for this applicant. 

Kurta Questions: 

1.Does any evidence state that the applicant had a condition or experience that mayexcuse or mitigate a discharge? Yes. The applicant asserts MST associated withcircumstances of discharge.



2.Did the condition exist or experience occur during military service? Yes, per hisassertion above.



3.Does the condition or experience actually excuse or mitigate the discharge? Unableto opine.  The applicant asserts mitigation due to MST which he notes led to periodsof AWOL and failure to report resulting in discharge; under liberal consideration hisassertion alone is worthy of consideration by the Board.  As a general statement ofconsideration, the natural course of behavior following MST may reasonably result inthe avoidance behaviors described in his record such as AWOL and/or failure toreport, especially within the environment and/or around individual(s) associated withsuch an event.  Therefore, such behaviors would be mitigated.  Regarding theoffense of stealing a weapon, the experience of MST does not typically result in theinability to distinguish right from wrong and adhere to the right.  However, one couldpotentially make such a case if there was clear indication of a perceived ongoingthreat and need to protect oneself, combined with exhausted efforts for legallyobtaining protection.  Ultimately, the lack of clear data regarding the facts andcircumstances leading to discharge (other than applicant’s reports) render suchpoints general and speculative, rather than a formal statement addressing thespecifics of the applicant’s case.





BOARD DISCUSSION: 

After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief 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 considered the frequency and nature of the misconduct, the reason for separation and concurred with the finding of the Agency Medical Advisor. The Board found 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 a preponderance of evidence available for review, 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 Board determined 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.  



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REFERENCES: 
 
1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.   
 
2.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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. 
 
 a.  Paragraph 3-7a states 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 states 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.   
 
3.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. 
 
4.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to:  mental health conditions, including PTSD; TBI; sexual assault; sexual harassment.  Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge. 
 
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 on the basis of 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. 
 
6.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
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