IN THE CASE OF: BOARD DATE: 10 May 2023 DOCKET NUMBER: AR20220009596 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he was young and constantly discriminated against while serving. He went on leave after his father died and became "really stressed." After informing his chain of command, of his situation; he was told to return to the unit. He came back two days late and was charged with being absent without leave (AWOL). He informed the Executive Officer [whom he asserts was white] of the situation on many occasions and was told to "get out of his face and return to his post." At 2:45 pm, on a day in February 1976, the First Sergeant (1SG) told him to sign some papers. He informed the 1SG he was illiterate but told to sign anyway. He assumed these papers were to get him the mental help he needed; but they were discharge papers and he was separated a week later. 3. The applicant's service record shows: a. On 20 August 1974, the applicant enlisted in the Regular Army, for a 3-year service obligation. His DD Form 4 (Enlistment Contract) shows he completed nine years of education and had an Armed Forces Qualification Test score of 25. Upon completion of training, and award of military occupational specialty 11B (Light Weapons Infantryman), he was assigned to Fort Hood, TX, on 13 February 1975. b. On 6 June 1975, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 19 May 1975 to on or about 28 May 1975. His punishment included reduction to the grade of E-2, 14 days extra duty, and restriction. c. On 22 September 1975, the applicant accepted NJP under the provisions of Article 15 of the UCMJ, for failing to go to his appointed place of duty at the time prescribed, on or about 11 August 1975; and for absenting himself from his unit on or about 30 August 1975. His punishment included reduction to E-1 (suspended for 90 days), 30 days extra duty, and restriction. d. On 4 December 1975, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with the following: * one specification of being AWOL from on or about 14 October 1975 to on or about 28 November 1975 * one specification of failing to go to his appointed place of duty at the time prescribed, on or about 1 October 1975 * two specifications of breaking restriction on or about 5 October 1975 and on or about 27 September 1975 * one specification of willfully disobeying a lawful order from his superior non- commissioned officer on or about 7 October 1975 e. On 5 January 1976, court-martial charges were again preferred against the applicant for violations of the UCMJ. His DD Form 458 shows he was charged with the following: * one specification of willfully disobeying a lawful order from his superior non- commissioned officer on or about 23 December 1975 * one specification of failing to go to his appointed place of duty at the time prescribed, on or about 22 December 1975 f. On 12 January 1976, after consulting with counsel (a Judge Advocate General Officer), the applicant voluntarily requested discharge, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charges and elected to submit the following statement in his own behalf. First of all, the main reason why I want to get out or should I say the reasons why I want to get out is: Number one, I don’t like the Army, the .. harder I try to progress the worst things get. Sometimes I find myself in very bad situations, besides my commander and I don’t get along well, same goes along with the First Sergeant, I and the rest of the NCOs. Most of them think that when I am doing my job I am somewhere goofing off. I just hate the Army, if I don't get out, I am not going to stay in. Second of all my mother and father doesn’t have a job. Most of the time they are partially sick. When I go home this creates a problem. Also, their living conditions is very bad so I just can't cope with the Army simply because I have problems on the inside and out bust mostly in this Army. Signed g. On 16 January 1976, the applicant underwent a separation and mental status examination. The supporting documentation shows he noted he was in good physical condition with no previous complaints. Subsequently, the examining physician qualified him for separation. His mental status evaluation show he was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings and met retention standards. h. On 23 January 1976, the applicant's complete chain of command recommended approval of his discharge request for the good of the service with an undesirable discharge. It was noted he failed to respond to corrective training and showed little interest in the military or any authority. i. On 5 February 1976, the separation authority approved the applicant's request for discharge for the good of the service. He directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). j. On 25 February 1976, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) confirms he was separated 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 UOTHC and he was credited with completing 1 year, 4 months, and 13 days of net active service this period with 54 days of lost time. 4. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 5. On 13 September 1984, the Army Discharge Review Board reviewed the applicant's request for an upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. However, the Board determined his DD Form 214, needed corrections and he was issued a DD Form 215 (Correction to DD Form 214) changing the following: * Item 18A (Net Active Service This Period) Change to "01 04 07" * Item 18C (Total Active Service) Change to "01 04 07" * Item 18E (Total Service for Pay) Change to "01 04 07" * Item 21 (Time Lost) DELETE: "54 DAYS" (10 USC) (SEE 27) * Item 21 ADD: "59 DAYS" * Item 21 DELETE: "ITEM 21; 54 DAYS LOST UNDER TITLE 10 USC 972 FROM 30 AUG 75 THRU 3 SEP 75, 14 OCT 75 THRU 1 DEC 75" * Item 27 (Remarks) ADD: "59 DAYS LOST UNDER TITLE 10 US CODE 972: 750519-750527, 750830-750903, 751014-751127 NOTHING FOLLOWS" 6. In the processing of this case, Agency staff requested the applicant provide a copy of medical documents to support his contention of Other Mental Health issues, he did not respond. 7. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting upgrade of his under other than honorable conditions (UOTHC) discharge. 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) The applicant enlisted in the Regular Army on 20 August 1974; 2) On 6 June 1975, the applicant accepted nonjudicial punishment (NJP) for being AWOL from 19-18 May 1975. He again accepted NJP on 22 September 1975 for failing to go to his appointed place of duty and for absenting himself from his unit; 3) On 4 December 1975, court- martial charges were preferred against the applicant for the following violations of the UCMJ: A) being AWOL 14 October-28 November 1975; B) for failing to go to his appointed place of duty at the time prescribed; C) two specifications of breaking restriction; D) one specification of willfully disobeying a lawful order from his superior non-commissioned officer; 4) On 5 January 1976, court-martial charges were again preferred against the applicant for one specification of willfully disobeying a lawful order from his superior non-commissioned officer and one specification of failing to go to his appointed place of duty at the time prescribed; 5) On 25 February 1976, the applicant was discharged, Chapter 10, for the good of the service in lieu of court-martial. His service was characterized as UOTHC; 6) On 13 September 1984, the Army Discharge Review Board reviewed and denied the applicant's request for an upgrade of his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided. d. The applicant asserts he experienced discrimination while on active service, and due to illiteracy, he was not able understand the nature of his discharge proceedings. He also reported experiencing mental health conditions which were mitigating factors in the circumstances that resulted in his separation. There was no evidence beyond self- report the applicant experienced discrimination in the available record. Also, the applicant reported being unable to understand the nature of his discharge due to being illiterate. The applicant did have an Armed Forces Qualification Test score of 25, which is well below average, but it does not equate to illiteracy. In addition, his mental status evaluation found that he was mentally responsible, able to distinguish right from wrong and adhere to the right, had the mental capacity to understand and participate in board proceedings and met retention standards. Lastly, On 12 January 1976, after consulting with counsel, the applicant acknowledged he was guilty of the charges and elected to submit a written statement in his own behalf. The applicant in his application and in his written statement on 12 January 1976 discussed that family and occupational stressors were related to his difficulty in the military and related to his misconduct. There was no indication the applicant was diagnosed with a mental health condition while on active service. A review of JLV was void of any behavioral health documentation. The applicant receives no service-connected disability. He did not provide any civilian medical documentation to support his assertion. e. 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 discrimination, illiteracy, a mental health condition that contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing discrimination, illiteracy, a mental health condition that contributed to his misconduct. 3. Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing discrimination while on active service. He also stated he was illiterate, but there is sufficient information that the applicant was provided legal counsel and was able to read and write at the time of his enlistment. He also described experiencing a mental health condition while on active service, but there is insufficient evidence that he has ever been diagnosed with a mental health condition. He did report having family and occupational stressors at the time of his active service. However, the applicant had a significant repeated pattern of being AWOL and not following orders. Going AWOL is an avoidant behavior and not following orders can be an erratic behavior. Both of these behaviors can be a sequalae to some mental health conditions, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends he was experiencing discrimination, illiteracy, and a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. 2. The Board determined there is insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. Evidence in the record show numerous instances of misconduct during his 1 year, 4 months, and 13 days of net active service. During deliberation, the Board recognized the applicant statement of being illiterate, but there is sufficient evidence in the record that the applicant was provided legal counsel and was able to read and write at the time of his enlistment. Based on the facts and circumstances, the Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 3. 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, 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 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. 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 ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 4. 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 a Soldier 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, an UOTHC discharge was normally considered appropriate. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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. 6. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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. 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) AR20220009596 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1