IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220010977 APPLICANT REQUESTS: Reconsideration of his prior request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 . DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR2005004122 on 1 December 2005. 2. The applicant states he needs the upgrade to obtain medical benefits. His absence without leave (AWOL) was due to mental issues and was an isolated incident in 21 months of service. 3. On the applicant's application, he indicates mental health issues as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 2 July 1985 for 4 years. He completed training with award of military occupational specialty 63B (Light Wheeled Vehicle and Power Generator Mechanic). 5. Court-martial charges were preferred against the applicant on 9 June 1987 for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 1 March 1987 until on or about 6 June 1987. 6. The applicant consulted with legal counsel on 10 June 1987 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf; however, the applicant waived this right. 7. On 15 June 1987, the applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of trial by court-martial, he further recommended he receive an UOTHC discharge. 8. The separation authority approved the applicant's request for discharge on 18 June 1987, in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and issued an UOTHC Discharge Certificate. 9. The applicant was discharged on 17 July 1987 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, 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, 9 month, and 12 days of net active service with 69 days in excess leave status and 96 days of lost time. 10. The ABCMR denied the applicant's request for an upgrade on 1 December 2005. The Board determined that the evidence presented did not demonstrate the existence of a probable error or injustice. His request for relief was denied. 11. 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 AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. 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. 13. MEDICAL REVIEW: a. Background: The applicant is requesting reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant contends that mental health was a mitigating factor in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: . Applicant enlisted into the RA on 2 July 1985. . On 9 June 1987, court-martial charges were preferred for being AWOL from on or about 1 March 1987 to 6 June 1987. . The applicant requested discharge under AR 635-200, Chapter 10, in lieu of trail by court martial. It was approved. The applicant was discharged on 17 July 1987 with an Under Other Than Honorable Conditions discharge. . Applicant requested an upgrade through ABCMR and was denied 1 December 2005. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though minimal data was available. No additional medical or mental health documents were provided. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant asserts that mental health issues were a contributing factor to his AWOL and discharge. There is no evidence that the applicant has ever been diagnosed with a mental health condition. The applicant’s electronic health record (EHR) from both the VA and DOD contain no mental health records from his time in service, nor since his discharge. And the applicant did not supply any civilian or military medical or mental health records to substantiate his attestation. Though, given lack of electronic health records at the time of his service, it is not uncommon for there to be no record of treatment or formal support. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends his misconduct was related to his mental health, and per Liberal Consideration guidance, 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 attests to having “mental issues.” 2. Did the condition exist or experience occur during military service? Yes, the applicant asserts that “mental issues” led to him going AWOL. f. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to “mental issues.” There is no evidence beyond self-report that the applicant was experiencing a mitigating condition on active service. There was no evidence provided that indicates he has ever been diagnosed with any mental health condition. The applicant did go AWOL, which 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 depression that mitigated his misconduct and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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 there was no evidence provided that indicates the applicant has ever been diagnosed with any mental health condition. 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 behavioral health diagnosis, post-service achievements, or letters of reference 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. 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 AR2005004122 on 1 December 2005. 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) sets forth procedures for processing requests for the correction of military records. 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. 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 post-traumatic stress disorder (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. //NOTHING FOLLOWS//