IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20220011834 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 was 17 years old when he was discharged. He was called into the captain’s office and told that his aunt had passed away. Heartbroken and sad, he was asked if he wanted to go home, and he said yes. He served for 2 years, 5 months, and 16 days. His hitch (contract) was for 3 years, and he did not want to return. If he had known at the time that not completing his hitch would have led to an UOTHC, he more than likely would have returned to finish his time. He is 66 years old now and in need of assistance, he had no idea that he would not be able to receive any benefit because of that ruling. He has had hardships and is not working. He had a major heart attack in 2021 and has no income other than social security. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 30 May 1974, the applicant enlisted in the Regular Army, for 3 years. Upon completion of training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist). 5. Before a special court-martial on 17 December 1974, at Fort Jackson, SC, the applicant was found guilty of striking a Soldier with force likely to produce grievous bodily harm, on or about 27 November 1974. The court sentenced him to forfeiture of $100 pay for three months and reduction in grade to E-1. The sentence was approved on 11 February 1975. 6. On 28 July 1975, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 14 July 1975. His punishment included forfeiture of $75.00 pay for one month and 10 days extra duty. 7. On 31 October 1975, the applicant accepted NJP under Article 15 of the UCMJ, for sleeping on duty, on or about 14 October 1975. His punishment included forfeiture of $25.00 pay for one month and reduction in grade to E-1. 8. On 24 February 1976, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the prescribed time to his appointed place of duty, on or about 3 February 1976. His punishment included forfeiture of $100.00 pay for one month and 14 days extra duty. 9. Before a special court-martial on 11 June 1976, at Kaiserslautern, Germany, the applicant was found guilty of going absent without leave from on or about 22 December 1975 until on or about 30 December 1975. The court sentenced him to forfeiture of $100 pay per month for six months, 60 days restriction, and hard labor without confinement for 60 days. The findings and sentence were disapproved on 19 October 1976 because the applicant was denied a speedy post-trial disposition of his case. All of his rights, privileges, and property were restored. 10. On 28 June 1976, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 11. On 6 July 1976, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 19 June 1976. His punishment included forfeiture of $75.00 pay for one month. 12. On 30 July 1976, the applicant accepted NJP under Article 15 of the UCMJ, for operating a privately owned vehicle without a license, on or about 20 May 1976. His punishment included 30 days restriction and extra duty. 13. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 14. The applicant was discharged on 20 November 1976. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with separation program designator code JFS (discharge for the good of the service - in lieu of court-martial). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 2 years, 6 months, and 5 days of net active service this period. 15. 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. 16. 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. 17. MEDICAL REVIEW: a. The applicant is requesting upgrade of his UOTHC discharge to honorable. He contends his misconduct was related PTSD. 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 into the Regular Army on 30 May 1974; 2) Before a special court- martial on 17 December 1974, at Fort Jackson, SC, the applicant was found guilty of striking a Soldier with force likely to produce grievous bodily harm, on or about 27 November 1974; 3) As outlined in the ROP, the applicant accepted NJP under provision of Article 15 of the UCMJ on 5 separate occasions for various infractions, between 28 July 1975 and 30 July 1976; 4) Before a special court-martial on 11 June 1976, at Kaiserslautern, Germany, the applicant was found guilty of going AWOL from on or about 22 December 1975 until on or about 30 December 1975; 4) The applicant was discharged on 20 November 1976 under the provisions of AR 635-200, Chapter 10 – in lieu of trial by court-martial. 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. Included in the applicant’s casefile was a Mental Status Evaluation, dated 28 June 1976, that showed he was psychiatrically cleared for any administrative action deemed appropriate by command. Also included in the casefile was a Report of Medical Examination, dated 28 June 1976, that showed the applicant was deemed medically qualified for administrative separation. No other military BH- related records were provided for review. A review of JLV was void of any BH treatment history for the applicant and he does not have a service-connected disability. No civilian BH records were provided for review. d. The applicant is requesting upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and he provided no documentation supporting his contention of PTSD. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service that mitigated his misconduct. However, he contends his misconduct was associated with PTSD, 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 contends his misconduct was related to PTSD. (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 upgrade of his UOTHC discharge to honorable. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and he provided no documentation supporting his contention of PTSD. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. BOARD DISCUSSION: 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 request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board noted the applicant’s contention that his misconduct is based on PTSD. However, evidence of record is insufficient to determined that he was diagnosed with PTSD while in service and he did not provide any on his own behalf. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 Service Boards for Correction of Military/Navy 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 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, traumatic brain injury, 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 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. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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) AR20220011834 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1