IN THE CASE OF: 
BOARD DATE: 26 May 2023 DOCKET 
NUMBER: AR20220010812 

APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge; and an appearance before the Board via video/telephone. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

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

. 
personal statement 

. 
letters of support (three) 


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 AR200309419 on 5 February 2004. 

2. 
In a personal statement, dated 27 March 2012, the applicant states: 


a. 
He was abused by Sergeant First Class both verbally and physically of a racial nature and this started his emotional issues. At the time, he had a new wife, who was threatening divorce, and a child who had some medical issues. His platoon has some serious racial problems with promotions being blocked by racial issues not performance issues. The stress caused him to develop drug and alcohol problems. 

b. 
He took advice from his First Sergeant about going absent without leave (AWOL) for 30 days in order to be discharged. He was only 19 years old when he made the decision that has haunted him for 26 years. He didn't fully understand the consequences when he was advised to leave since others had done same. 

c. 
He has worked hard to be a good husband and father raising five children. He's had 11 surgeries, and had prescription drug problems as a result of the surgeries. He is active in two different 12-step programs for the drug problem and is in recovery. He is active in the community for others who also suffer from drug and alcohol problems. 


3. 
On his DD Form 149, he indicates post-traumatic stress disorder (PTSD), as a contributing and mitigating factor in the circumstances that resulted in his separation. 

4. 
The applicant enlisted in the Regular Army on 19 July 1983 for 4 years. He completed training with award of military occupational specialty 11B (Infantryman). 

5. 
The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was reported as AWOL from 31 October 1984 through 29 November 1984. 

6. 
On a Personnel Control Facility Interview Sheet, dated 4 November 1985, the applicant stated he had gone AWOL because his wife could not handle Army life and left stating it was her or the Army. He chose his family. 

7. 
A Personnel Control Facility Information Sheet indicates he surrendered to military authorities and waived a physical. 

8. 
Court-martial charges were preferred against the applicant on 6 November 1985 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 25 December 1984 through on or about 4 November 1985. 

9. 
The applicant consulted with legal counsel on 6 November 1985 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 UOTHC 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 
b. He elected not to submit a statement in his own behalf. 
10. 
Consistent with the immediate commander's recommendation, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial 

on 31 December 1985. He directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 794A (UOTHC Discharge Certificate). 

11. 
The applicant was discharged on 30 January 1986 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635­200, Chapter 10, for the good of the service – in lieu of court martial and his service was characterized as UOTHC. He was credited with 1 year, 7 months, and 4 days of net active service with 2 periods of lost time totaling 340 days. 

12. 
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. 

13. 
On 5 February 2004, the ABCMR denied the applicant's request for upgrade stating that the evidence presented, and the merits of this case were insufficient to warrant the relief requested. His request was denied. 

14. 
On 8 January 2023, the applicant was asked to provide medical documentation to support his PTSD claim. However, he did not respond. 

15. 
The applicant provides three letters of support, dated in 2012. The applicant is described as an organized, responsible, and easy going individual, as well as a caring and loving father to his daughter. He is open, light-hearted, kind, and honest about his strengths and weaknesses. He has been active in the recovery community, assisting others who seek help by referring them to meetings, study groups, and treatment centers. His commitment and active participation in these endeavors reflect credit upon him as an individual. 

16. 
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. 

17. 
MEDICAL REVIEW: 


a. 
The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions including PTSD that mitigated 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 applicant enlisted in the Regular Army on 19 July 1983; 2) The applicant was found to be AWOL from 31 October 1984-29 November 1984. He was again found to be AWOL from 25 December 1984-4 November 1985; 3) The applicant was discharged on 30 January 1986, Chapter 10, for the good of the service – in lieu of court martial. His service was characterized as UOTHC; 4) On 5 February 2004, the ABCMR denied the applicant's request for upgrade. 

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. No additional medical documentation was provided. 

d. 
The applicant asserts he was experiencing racial discrimination and martial distress which influenced his decision to go AWOL. He also stated his leadership encouraged him to go AWOL, instead of addressing his concerns about racial discrimination. On his application, he also indicated mental health conditions including PTSD were contributing and mitigating factors in the circumstances that resulted in his separation. There was insufficient evidence the applicant reported mental health symptoms while on active service. A review of JLV was void of mental health documentation, and the applicant receives no service-connected disability. The applicant noted that he has completed treatment for substance abuse, and one of his reference letters dated 2012 stated he was currently attending substance abuse treatment. The applicant did not provide any additional medical documentation from a licensed provider. 

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 mental health conditions including PTSD that contributed to his misconduct. He also reported experiencing racial discrimination. 

2. 
Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions, including PTSD and racial discrimination while on active service. 

3. 
Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing any mental health condition including PTSD or racial discrimination while on 


active service. The applicant did go AWOL, which can be a sequel to some mental health conditions and discrimination, but this is not sufficient to establish a history of a condition or experience during active service. However, the applicant contends he was experiencing a mental health condition and an experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 
BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board noted the applicant receives no service-connected disability and did not provide any additional medical documentation. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of PTSD, behavioral health diagnosis, or post-service achievements in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 

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. 


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 to amend the decision of the ABCMR set forth in Docket Number AR200309419 on 5 February 2004. 
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 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. 

2. 
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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an 


error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 
3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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. 

c. 
Chapter 10 of that regulation provided, in pertinent part, 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 under other than honorable conditions discharge was normally considered appropriate. 


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 Review 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 PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give a 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 BCM/NRs 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. 


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