IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20220011492 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 he requested to upgrade his DD Form 214 (Certificate of Release or Discharge from Active Duty) from bad conduct to a good one. He requests the upgrade so he can get benefits. The issues/conditions related to his request are post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). 3. The applicant enlisted in the Regular Army on 4 March 1982 for four years. His military occupational specialty was 62E (Heavy Construction Equipment Operator). 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 May 1982, for being derelict in the performance of his duties on or about 13 May 1982. His punishment consisted of forfeiture of $50.00 pay and extra duty. 5. He served in Korea from 21 July 1982 through 21 September 1983. 6. A Request for Documents, dated 26 October 1983, shows a request for NJP from 24 November 1982 and 10 August 1983, wherein the applicant was reduced to private/E-1. Additionally, a request for a Bar to Reenlistment, effective 15 August 1983. 7. Orders 036-601, issued by Headquarters, 4nrth Infantry Division Fort Carson, CO on 21 February 1984, show the applicant was assigned to the U.S. Army Personnel Control Facility and arrived in a dropped from the unit rolls status. He surrendered to military authorities on 17 February 1984 at Fort Carson. 8. Court-martial charges were preferred against the applicant on 22 February 1984 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit on or about 6 January 1984 and did remain so absent until on or about 17 February 1984. 9. The applicant consulted with legal counsel on 24 February 1984 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. 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 he understood 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised that he could submit statements in his own behalf. 10. The applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of court-martial on 24 February 1984, with an UOTHC characterization of service. The commander noted the applicant was not restorable. He experienced financial problems as a result of the Article 15s he received while in Korea. The applicant developed a negative attitude and felt he could support his family as a civilian. He was no longer motivated to return to duty and felt his negative attitude would prevent his rehabilitation. 11. The separation authority approved the applicant's request for discharge on 1 March 1984, in lieu of trial by court-martial. He directed that the applicant be furnished an UOTHC Discharge Certificate. 12. The applicant was discharged on 14 March 1984. 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, with Separation Code KFS. His service was characterized as UOTHC. He completed 1 year, 10 months, and 29 days of net active service. He lost time from 6 January 1984 to 16 February 1984. 13. 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 a Chapter 10 discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. On 6 February 2023, the applicant was asked to provide medical documents that support his mental health issues. As of 6 March 2023, no response was provided. 15. 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. 16. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he experienced a traumatic brain injury (TBI) and 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 4 March 1982; 2) A Request for Documents, dated 26 October 1983, shows a request for NJP from 24 November 1982 and 10 August 1983, wherein the applicant was reduced to private/E-1. Additionally, a request for a Bar to Reenlistment, effective 15 August 1983 was initiated for the applicant; 3) Court-martial charges were preferred against the applicant on 22 February 1984 for being AWOL from 6 January 1984-17 February 1984; 4) The applicant was discharged on 14 March 1984, Chapter 10, for the good of the service - in lieu of trial by court- martial. His service was characterized as UOTHC. 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 records were provided. d. On his application, the applicant noted TBI and PTSD were related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service or experienced a TBI. A review of JLV was void of medical documentation. The applicant receives no service-connected disability. 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 a TBI and PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a TBI and PTSD 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 a TBI and PTSD while on active service. The applicant did go AWOL, which can be a sequalae to some mental health conditions, including PTSD and TBI. Yet, this is not sufficient to establish a history of either condition during active service. However, the applicant contends he was experiencing 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 her characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted the medical opine finding insufficient evidence beyond self-report the applicant was experiencing a TBI and PTSD while on active service. The applicant did go AWOL, which can be a sequalae to some mental health conditions, including PTSD and TBI. Yet, this is not sufficient to establish a history of either condition during active service. 2. 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. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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. 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): Not Applicable ? 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 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, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), 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 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. 5. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service 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// ABCMR Record of Proceedings (cont) AR20220011492 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1