IN THE CASE OF: BOARD DATE: 6 June 2023 DOCKET NUMBER: AR20220010751 APPLICANT REQUESTS: The father of a deceased former service member (FSM) requests upgrade of the FSM's under other than honorable conditions (UOTHC) discharge to honorable and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the upgrade. Additionally, he requests a personal appearance before the Board or via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * New Information letter (FSM) * Self-authored letter * Office Staff Judge Advocate letter * La Mesa Surgical Group letter * Journal letter * Service documents * Medical documents * FSM Obituary, Birth and Marriage Certificate * DD Form 214 * Performance Review and Certificate of Training * Character letters (four) * Pictures and Post Card * Department of Veterans Affairs letter FACTS: 1. The FSM 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 requests upgrade of the FSM's less than honorable discharged based upon data found after the FSM passed away of lung cancer on 24 December 2021. Theses records were found in March 2022. The issues/conditions related to his request are other mental health and sexual assault/harassment. The applicant states the correction should be made so that the FSM's ashes can be interned with his mother's at the East Tennessee Veterans Cemetery. The correction should be made due to false data entry on enlistment contract, the recruiter told the FSM not to list his son or he would be disqualified, harassment by the FSM's sergeant. Sexual harassment while taking a shower, attempted sexual assault while on drugs, psychological problems, and psychiatric treatment. In item 7 of the FSM's letter, dated 24 February 1975, the FSM states he became very depressed and started to use some drugs so that his urine would show positive and to help him forget about his problems at home. The FSM had a urine check each week and they showed positive drug use each time. 3. The applicant provides: a. A letter from the FSM, dated 24 February 1975 that states the FSM volunteered for the U.S. Army in October 1972 based on the sales pitch given by the Army recruiter for a technical career. The FSM would not have been drafted since he had a high number and also a wife and child. The recruiting officer told him "Not to list his son on the papers" since this would disqualify him. The FSM completed basic training and was scheduled for Military Police (MP) school, no consideration was given to his qualifications for a technical career. He was able to get this changed to auto mechanics class which was nothing more than minor tune-ups. He had been through more than this in high school. (1) Things started to go wrong after about two and half months. The FSM had not received any money to pay his bills and his wife had not received her allotment money to pay the rent. It was very difficult to get time off to solve his problems. He began to feel this whole thing was a farce and he had no desire to pursue such a hopeless career. Things at home went wrong. The FSM started to try and find a way to get out of the Army. He was eventually sent to Germany in April 1973 without his family. His superiors did not consider any of his problems. In May 1973 he was berated for having a pipe that the MPs said had some marijuana residue in it. After that, the FSM was labeled a drug suspect even though there was no proof. (2) His desire to get out of the Army intensified and he called his parents and asked for help and also informed them that his wife had decided on a separation and would not join him in Germany. The only way he knew to straighten things out was to get out of the Army. There were a lot of drug problems in Germany, and he decided to use this method to get out since nothing else worked. The FSM's dad had talked with his commanding officer Captain/CPT N__ about an administrative discharge and returning him to home. CPT N__ never told him about this and he did not do anything like he told the FSM's dad he was going to do. His dad also had the Red Cross inquire about the FSM's health and welfare through CPT N__. CPT N__ reported back that everything was all right and that the FSM had no problems. He never informed him of this report or any other actions that were being done for him. The same health and welfare request was made through a congressman's office in San Diego, CA. The same answer was given as before, his health and welfare were okay with no problems. (3) The applicant wrote letters to the FSM talking about his efforts to get some action going to get the FSM out of Germany and the Army. The FSM's commanding officer never once informed him about these things, and he figured they were trying to stick him. The FSM's sergeant told him they intended to get everything on him they could. The FSM would meet others at the service club, and they would go hiking. One weekend while hiking the FSM started to run down a hill and tripped and fell on his wrist. He thought he had a bad sprain, and he went to sick call on several occasions, but he could never get anyone to really check it out. About three weeks later the FSM was called into the commander's office and the MP agents told him he was being charged with house breaking and larceny and took him to his locker and searched it for evidence that they did not find. Another guy said he was with the FSM at the time of the incident. M__ was with them the day the FSM broke his wrist and had taken some LSD that evening. It seemed most people didn't get along with M__ so he came up with the story that connected the FSM's broken wrist with the burglary. (4) The class system in the Army is unbelievable; anyone below sergeant/E-5 is considered to be the lowest form of life on earth. The FSM was a private 2/E-2, priority zero. Therefore, the FSM took the Chapter 10 discharge without trial on the charges made against him by an acid head. A court-martial without a civilian lawyer is just like being sent to hell. He couldn't afford a lawyer so he would have been presented by an appointed military officer. Officers have careers to protect, and they would convict him just on suspicion. He wanted to get home so he could fight on equal grounds with the Army. b. The applicant's self-authored letter, dated 29 July 2022, states he is a 94-year-old veteran of the Army Air Force. The applicant reiterates some of the above and that his son, the FSM, was a well-adjusted young man, good mannered and very polite. The FSM began smoking while in the Army and continued smoking for over 40 years. He died from lung cancer. The FSM told the applicant of his cruel and unusual treatment received while he was stationed in Germany. The FSM broke his wrist and was sent home with a "less than honorable discharge." The applicant lists the FSM's post service employment and accomplishments, and that the FSM began to have psychological problems and had psychiatric treatments. 4. The FSM enlisted in the Regular Army on 4 October 1972, for a period of two years. His military occupational specialty was 63B (Wheel Vehicle Repairman). 5. The FSM served in Germany from 17 April 1973 through 8 October 1974. 6. The FSM accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 February 1973 for without authority, absenting himself from his unit on or about 11 February 1973 and did remain so absent until on or about 21 February 1973. His punishment consisted of forfeiture of $85.00 per month for one month; reduction to private/E-1; restriction; and extra duty. The FSM appealed his punishment and stated he was not trying to deny the fact that he went absent without leave (AWOL), but he did return of his own free will. He asked for a reduction in the forfeiture of pay due to financial difficulties at home. Since he came into the Army, he had fallen almost three months behind in most of his payments. This was causing hardships for his wife and son and endangering his credit. 7. The FSM accepted NJP under Article 15 of the UCMJ on 15 May 1973 for having in his possession a smoking pipe containing marijuana residue on or about 14 May 1973. His punishment consisted of reduction to private/E-1, suspended until 16 June 1973; forfeiture of $71.00, suspended until 15 August 1973; extra duty; and restriction. 8. The Report of Mental Status Evaluation shows the FSM did not have significant mental illness; was mentally responsible; able to distinguish right from wrong; able to adhere to the right; had the mental capacity to understand and participate in board proceeding; and met retention standards. 9. The Report of Medical Examination, dated 15 August 1975, shows in item 73 (Notes) Abuse of opiates and in item 74 (Summary of Defects and Diagnoses) Dependence on morphine derivatives. The FSM was qualified for administrative separation. 10. The Report of Medical History, dated 15 August 1975, shows in item 25 (Physician's summary and elaboration of all pertinent data) the FSM had a long history of allergic difficulties including bronchial asthma, psychological difficulties secondary to drug use and broken bones secondary to a motorcycle accident in October 1971. 11. The Statement of Medical Condition, dated 18 November 1973, showed there had been no change in the FSM's medical condition since his last separation examination on 15 August 1973. 12. The FSM's Bar to Enlistment/Reenlistment, dated 24 August 1973, shows the FSM's job performance had been extremely poor, and he had on of the worst attitudes toward the U.S. Army that the commander had ever observed. The FSM stated his desire to get out of the Army under any circumstances on numerous occasions. The FSM was in Drug and Alcohol Abuse program and had made absolutely no effort to rehabilitate himself. He had six positive urine tests. The commander recommended the FSM be released from the service immediately and that he be barred from any further service or entry into military service. 13. The FSM was flagged for suspension of favorable actions on 13 September 1973 because he was pending action under court-martial. His bar to reenlistment/enlistment was approved on 20 September 1973. 14. Court-martial charges were preferred against the FSM on 18 October 1973 for violations of the Uniform Code of Military Justice (UCMJ). The FSM's DD Form 458 (Charge Sheet) shows he was charged with: * unlawfully entering a club the property of Germany with intent to commit a criminal offense or about 26 August 1973 * stealing an assortment of food items, total value of about $110.25 the property of the European Exchange Service on or about 26 August 1973 * stealing one hacksaw and one crowbar, total value of about $11.00 the property of the U.S. Government on or about 26 August 1973 * stealing eight belts, one knife, and one leather shoe total value of about $92.50 the property of DPK on or about 26 August 1973 * stealing one leather bag value of about $5.00 the property of Private First Class (PFC) JEC on or about 26 August 1973 * stealing one leather belt of a value of about $3.00 the property of PFC JRD on or about 26 August 1973 * without proper authority, willfully damaged by forcibly opening five vending machines a value of about $5,068.38 military property of the U.S. Government, European Exchange Service on or about 26 August 1973 the amount of damage of about $32.50 on or about 26 August 1973 15. The FSM's commander recommended his elimination from service and trial by special court-martial on 18 October 1973. 16. The FSM consulted with legal counsel on 26 October 1973 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 a UOTHC discharge; and the procedures and rights that were available to him. a. After consulting with legal counsel, the FSM 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. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. The form does not indicate his selection regarding submitting statements in his own behalf. 17. The FSM's chain of command recommended approval of his request for discharge for the good of the service with the issuance of an undesirable discharge certificate. 18. The separation authority approved the FSM's request for discharge on 2 November 1973 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate), with reduction to the lowest enlisted grade. 19. The FSM was discharged on 19 November 1973. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 10-a, Separation Program Number 246, for the good of the service in lieu of court-martial. His characterization of service was UOTHC. He completed 1 year, 1 month and 6 days of net active service. The FSM lost time from 11 February 1973 to 20 February 1973. 20. The FSM was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he would have 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. 21. On 22 April 1977, the Department of Defense Discharge Review Program (Special) informed the FSM that he was not eligible for consideration under this special program. 22. On 20 January 2023, by letter, the U.S. Army Criminal Investigation Command (USACID) responded to a request for a sanitized copy of information from CID, that a search of the Army criminal file indexes utilizing the information provided revealed no Military Sexual Assault/Trauma records pertaining to the FSM. The records at their center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 23. The applicant provides the following documents that are each available in their entirety for the Board's consideration: a. A letter from the Office of the Staff Judge Advocate (SJA), Schweinfurt Area Branch Office, Germany, dated 13 December 1973, to the applicant shows the legal assistance officer was not assigned to defend the FSM however, he explained to and discussed with the FSM the charges and specifications, his rights to military and civilian counsel, the maximum punishment to which he could be sentenced if found guilty, etc. The FSM decided to submit a request to be discharged for the good of the service in lieu of court martial under the provisions of Chapter 10, Army Regulation 635-200. The adverse consequences of being discharged under Chapter 10 were fully explain to him prior to submitting the request or discharge. b. A letter from the La Mesa Surgical Group, La Mesa, CA, dated 19 December 1973, regarding treatment for a fracture of his right wrist. c. A journal letter shows the FSM indicated he received no pay for three months and being separated from his wife caused additional problems. d. Service Documents and Medical Documents discussed above. e. The FSM's Obituary, Marriage Certificate, Birth Certificate, and Certificate of Death, shows the applicant is the FSM's father. f. A DD Form 214 discussed above, a Performance Review and Certificate of Training. g. Character letters that attest to the FSM's kindness, ability, reliability, good quality for advancement, and completion of first phase electronic program. h. Photographs of the FSM and a post card. i. A Department of Veterans Affairs (VA) letter, dated 2 January 2019, that notified the FSM of his possible eligibility to receive service from the VA. 24. In reference to burial benefits, decisions of the VA are solely within the jurisdiction of that agency. While the ABCMR can correct errors in an individual's military records it has no authority to direct or influence decisions by other agencies. 25. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 26. MEDICAL REVIEW: a. The applicant, the father of a deceased former service member (FSM), requests an upgrade of the FSM's under other than honorable conditions (UOTHC) discharge to honorable. The applicant contends the FSM experienced military sexual trauma (MST) and mental health conditions, which mitigates his misconduct. 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 FSM enlisted into the Regular Army on 4 October 1972; 2) The FSM accepted nonjudicial punishment (NJP) on 23 February 1973 for being AWOL from 11-23 February 1973. The applicant admitted he did go AWOL, but he requested a reduction in forfeiture of pay due to financial difficulties at home. He reported he had not been paid for three months, which caused hardship for his wife; 3) The FSM accepted NJP on 15 May 1973 for having in his possession a smoking pipe containing marijuana residue; 4) The FSM's Bar to Enlistment/Reenlistment, dated 24 August 1973, shows the FSM's job performance had been extremely poor. The FSM stated his desire to get out of the Army under any circumstances on numerous occasions. The FSM was in Drug and Alcohol Abuse program and had made absolutely no effort to rehabilitate himself. He had six positive urine tests; 5) Court-martial charges were preferred against the FSM on 18 October 1973. The FSM was charged with: A) Unlawfully entering a German club; B) Stealing food items of the European Exchange Service; C) Stealing a items from the US Government; C) Stealing items from DPK; D) Stealing items from anther Soldier; E) Forcibly opening five vending machines for the US Government European Exchange Service; 6) The FSM was discharged, on 19 November 1973, paragraph 10-a, Separation Program Number 246, for the good of the service in lieu of court-martial. His characterization of service was UOTHC; 7) On 22 April 1977, the Department of Defense Discharge Review Program (Special) informed the FSM that he was not eligible for consideration under this special program. 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), FSMs written statement dated 24 February 1975, civilian medical information, and the applicant’s statement were also examined. d. The applicant asserts the FSM was impacted by a mental health condition and MST while on active service, which mitigated his misconduct. There is consistent evidence the FSM was experiencing significant hardship with not receiving pay for three months. This situation appears to have caused financial strain to the FSM, his wife, and their child. The FSM and the applicant reported the FSM went AWOL to address his family situation. There is also evidence the FSM was very dissatisfied with the military and was seeking a way out of his commitment. He was reported to be using illegal substances to be discharged from the military. He was enrolled in substance abuse counselling, and he continued to test positive for illegal substances. Also, the FSM reported experiencing depression. A Report of Mental Status Examination shows the FSM met psychiatric retention standards and was cleared for administrative proceedings. During his FSM medical examination, he was found to be dependent on opioids and was experiencing psychological issues secondary to his drug use. The applicant reported the FSM was engaged psychiatric treatment after his discharge, but he did not provide supporting medical documentation. Also, the applicant reported the FSM was exposed to MST, but there is no record of the FSM reporting these events. A review of JLV is void of any medical documentation for the FSM, and he received no service-connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is evidence to support the FSM was experiencing a condition or had an experience that partially mitigated his misconduct. 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 the FSM was impacted by MST and a mental health condition, which contributed to his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends the mental health condition and experience of MST occurred while the FSM was on active duty. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial, there is evidence beyond the report of the applicant that the FSM was experiencing significant financial distress, which was impacting his family. It is likely this acute stress influenced his decision to go AWOL to address his family situation. In addition, he likely was using substances to avoid his negative emotions and his military commitment. The applicant reported the FSM experienced MST, but there is insufficient evidence the applicant himself stated he experienced MST. However, the contention of MST is sufficient for the board’s consideration. Lastly, the FSM was found guilty of unlawfully entering establishments and theft. There is no nexus between report of a mental health condition or MST and this type of misconduct given that: 1) this type of misconduct is not part of the natural history or sequelae of his report of a mental health condition or MST; 2) his reported mental health condition nor MST affects one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends the FSM’a mental health condition and experience of MST resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined that partial 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, the FSM’s record of service, an advisory opinion, and the reason for separation and whether to apply clemency. One possible outcome was to deny the requested relief based upon the misconduct. However, the Board majority concurred with the advisory official finding there is evidence beyond the report of the applicant that the FSM was experiencing significant financial distress, which was impacting his family. After reviewing the application and all supporting documents, the Board found that partial relief was warranted based upon guidance for consideration of discharge upgrade requests. 2. 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 :x :x : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 19 November 1973 showing his character of service as general, under honorable conditions. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a discharge upgrade to honorable. 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, 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 4. Army Regulation 635-200 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 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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 (UOTHC) and who have been diagnosed with post-traumatic stress disorder (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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20220010751 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1