IN THE CASE OF: BOARD DATE: 7 June 2023 DOCKET NUMBER: AR20220010684 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and a personal hearing before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Letter 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 AR20120001814 on 10 July 2012. 2. The applicant states during his period of service there was never any evidence brought against him. Had he not taken the status offered he would mostly likely have been railroaded into prison. He feels he was treated unfairly and did not have the funds for an attorney. He served proudly but his service was terminated unfairly. 3. On his DD Form 149, he indicates mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. However, he did not provide documents of a mental health diagnosis. 4. The applicant enlisted in the Regular Army on 19 June 1979 for 3 years. He completed training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic). The highest grade he held was E-3. 5. Court-martial charges were preferred against the applicant on 21 October 1980, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was initially charged with eight specifications, all but two were deleted. The remaining specifications were for stealing a watch and cash from a fellow Soldier on or about 30 September 1980 by means of force and violence by putting him in fear, and stealing cash and a check book from another Soldier. 6. The applicant consulted with legal counsel on 15 June 1981 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He acknowledged in his request that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person and waived his right to provide a statement in his own behalf. 7. The applicant's chain of command recommended approval of his request for - discharge in lieu of court-martial. 8. The separation authority approved the applicant's request on 16 June 1981, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 1 July 1981 in the grade of E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court martial. His service was characterized as UOTHC. He was credited with 2 years and 13 days of net active service. 10. 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. 11. The ABCMR denied the applicant's request for an upgrade on 10 July 2012. Based on the offenses he was accused of and in view of the fact he voluntarily requested discharge to avoid a court-martial, his overall record of service did not support the issuance of a general or honorable discharge. The evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of his records. 12. The applicant provides a character letter, which states he showcased consistency along with integrity and passion to help others when needed in the county he served. He has been a proud, essential worker from the time he started his journey with the district for over 16 years. It was a pleasure to work alongside him and watch him learn and grow in his field of work. He has upheld his duty and continues to do so. 13. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 14. MEDICAL REVIEW: a. The applicant requests reconsideration for his previous request of an upgrade of his under other than honorable conditions to an honorable characterization of service. He contends his misconduct was related to Other Mental Health issues. 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 19 June 1979; 2) Court-martial charges were preferred against the applicant on 21 October 1980, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was initially charged with eight specifications, all but two were deleted. The remaining specifications were for stealing a watch and cash from a fellow Soldier on or about 30 September 1980 by means of force and violence by putting him in fear and stealing cash and a check book from another Soldier; 3) The applicant consulted with legal counsel on 15 June 1981 and was advised of the basis for the contemplated trial by court-martial. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of AR 635-200, Chapter 10, in lieu of trial by court; 4) The separation authority approved the applicant's request on 16 June 1981, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and receive a UOTHC Discharge Certificate; 5) The applicant was discharged on 1 July 1981, accordingly. c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No military BH-related records were provided for review. A review of JLV was void of any BH-related treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian BH-related records were provided for review. d. The applicant is requesting an upgrade of his under other than honorable conditions discharge characterization. He contends his misconduct was related to Other Mental Health issues but provided no additional content or context. A review of the records was void any BH-related diagnosis or treatment for the applicant during or after military service and he provided no documentation supporting his assertion of Other Mental Health issues. In absence of documentation supporting his assertion of Other Mental Health issues, there is insufficient evidence his misconduct was related to Other Mental Health issues. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to Other Mental Health Issues, and per Liberal Consideration policy, his contention is sufficient to warrant the Board’s consideration. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was related to Other Mental Health issues. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant is requesting an upgrade of his under other than honorable conditions discharge characterization. He contends his misconduct was related to Other Mental Health issues but provided no additional content or context. A review of the records was void any BH-related diagnosis or treatment for the applicant during or after military service and he provided no documentation supporting his assertion of Other Mental Health issues. In absence of documentation supporting his assertion of Other Mental Health issues, there is insufficient evidence his misconduct was related to Other Mental Health issues. ? 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 no evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. The Board found the applicant’s records was void any BH-related diagnosis or treatment for the applicant during or after military service and he provided no documentation supporting his assertion of Other Mental Health issues. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. 2. The Board determined there is insufficient evidence his misconduct was related to Other Mental Health issues. The applicant provided no post service accomplishment or character letter of support that would attest to his honorable conduct that might have mitigated the discharge characterization. Furthermore, the Board determined 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 to reverse the previous Board decision. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20120001814 on 10 July 2012. 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 (ABCMR) sets forth procedures for processing requests for the correction of military records. a. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. The ABCMR will decide cases on the evidence of record, and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Additionally, the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 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. 2. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 Discharge Revie Boards and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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.) AR20220010684 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1