IN THE CASE OF: BOARD DATE: 1 November 2022 DOCKET NUMBER: AR20220002659 APPLICANT REQUESTS: The applicant, the daughter of a deceased former service member (FSM), requests his under other than honorable conditions (UOTHC) discharge be upgraded. Additionally, she requests an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from * Wikipedia printout on the Army Substance Abuse Program * Army Regulation 600-85 (The Army Substance Abuse Program) Cover Page * Webpage Image on the Army Substance Abuse Program * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * FSM’s Certificate of Death * FSM’s Autopsy Report * Applicant’s Certificate of Birth FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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: a. The National Cemetery Administration, denied the request to have their father buried at the Minnesota State Veterans Cemetery due to his type of discharge. They understand that the FSM went absent without leave (AWOL) on several occasions; however, they firmly believe his mental health suffered greatly due to his addiction to alcohol. They affirm that mental health concerns associated with alcohol addiction have changed greatly from the 1970s to the 21st Century and they believe today’s military would have provided mental health and addiction treatment options for the FSM. b. They feel relief should be granted because the FSM volunteered to enter military service at age 20, following in the footsteps of his father and his uncles with the hopes of serving his country and turning his life around. The FSM was an alcoholic at the time of his induction into the U.S. Army. That mental health condition greatly and obviously affected his performance. The FSM’s service record indicates multiple violations for AWOL. Those violations were a direct result of his mental state and addiction to alcohol. c. They believe today's military would have assisted with his mental health and alcohol addiction as opposed to discharging him. After his discharge he attended three separate treatment programs and was successfully sober in 1977. He was sober for 32 years until be relapsed in 2009. He attended treatment once again in early 2017 and relapsed shortly thereafter. The FSM passed away in September 2017 because of complications due to his alcohol addiction. 3. The FSM was inducted into the Army of the United States on 23 September 1970. He was assigned to Fort Knox, KY for training. 4. On 7 January 1971, he was reported in an AWOL status; however, he returned to military control on 11 January 1971. 5. The FSM accepted non-judicial punishment (NJP) on 12 January 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 7 January 1971, to on or about 11 January 1971. 6. On 13 January 1971, the FSM was again reported in an AWOL status and on 11 February 1971, he was dropped from the rolls as a deserter. He returned to military control on 11 March 1971. 7. The FSM again accepted NJP on 22 March 1971, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 13 January 1971 through on or about 11 March 1971. His punishment consisted of a reduction to private/E-1. 8. On 13 July 1971, before a summary court-martial at Fort Leonard Wood, MO, the FSM was arraigned and tried for violation of the UCMJ, Article 86. He was charged with one specification of being AWOL from on or about 16 April 1971 through on or about 25 June 1971. He plead guilty and was found guilty to the specification and the charge. The court sentenced him to confinement at hard labor for thirty days and forfeiture of $89 per month for one month. 9. The FSM was reported AWOL on multiple other occasions from on or about: * 7 August 1971 to on or about 13 August 1971 * 17 September 1971 through on or about 24 January 1972 10. The FSM was dropped from the rolls and reported as a deserter on 18 September 1971. 11. The FSM’s record is void of a complete separation packet that verifies if he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial. However, his record contains: a. Memorandum that shows that the FSM’s commander recommended approval of the FSM’s request for discharge under the provision of AR 635-200, Chapter 10. b. Memorandum that shows the separation authority approved the FSM's request for discharge on 29 February 1972, under the provisions of AR 635-200, Chapter 10, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The FSM was discharged on 3 March 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 6 months and 22 days of active service and he had 323 days of lost time. 13. The FSM was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant provides: a. A self-authored statement that provides a synopsis of the FSM’s service record and a listing of relatives that have served in the military. They state that the FSM was addicted to alcohol upon entering the military, they quote statistics from the Journal of the American Medical Association that show how mental health disorders are affected by substance abuse. Furthermore, the applicants state their efforts and inquiries with the Minnesota State Veterans Cemetery and the National Cemetery Administration regarding burial options for the FSM. The FSM’s son-in-law is a retired U.S. Navy Master Chief Petty Officer. Until 2021, the applicants were unaware they could request a discharge upgrade on behalf of the FSM. The family hopes that the Board will consider and allow an upgrade to the type of discharge for the burial of the cremated remains of their loved one. b. Digital image from Wikipedia, subject: Army Substance Program that show the mission, objectives, concept and the principles of the program. c. Front cover of Army Regulation 600-85 (The Army Substance Abuse Program). d. Digital image from the Army Substance Program websites that shows the various resources available and the guidelines for the program. e. FSM’s certificate of death that shows date of death as 20 September 2017. f. Autopsy report that shows final diagnoses of the FSM’s cause of death. g. Applicant’s certificate of birth that shows the FSM as her father. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. MEDICAL REVIEW: The applicant, the daughter of a deceased former service member (FSM), requests the FSM’s other than honorable conditions (UOTHC) discharge be upgraded. The applicant contends the FSM’s mental health suffered greatly due to his alcohol addiction and contributed to his misconduct. a. 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 23 September 1970; 2) Court-martial charges were preferred against him for going AWOL; 3) He was separated on 3 March 1972 under provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. b. Military medical records reviewed include the Standard Form 88 (Report of Medical Examination) dated 1 February 1972, finding the FSM medically cleared for separation. There is no evidence of the FSM having a BH diagnosis or receiving BH- related treatment during his time in service. A review of the VA electronic record (JLV) is void of any medical treatment. An autopsy conducted by the Ramsey County Medical Examiner, Saint Paul, MN dated21 September 2017 lists the applicant as having a history of depression and chronic ethanol use. c. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the FSM had condition or experience that mitigated his misconduct. However, the applicant contends the FSM had mental health issues that mitigated his misconduct, and per Liberal Consideration her contention is sufficient for the board’s consideration. d. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes, the applicant contends the FSM had mental health issues that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? (a) Yes. The applicant contends the conditions occurred while the FSM was on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. There is no evidence supporting the applicant had BH related issue while on active duty and JLV is void of any history of VA medical treatment. The applicant did provide an autopsy report that listed the FSM as having a history of depression and chronic ethanol use, but this is not sufficient to establish a history of depression during active service. BOARD DISCUSSION: 1. 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. 2. 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 and statement, supporting documents, evidence in the records, his record of service, the frequency and nature of the applicant's misconduct and the reason for separation, and published DoD guidance for liberal consideration of discharge upgrade requests. The FSM appears to have been charged with commission of an offense punishable under the UCMJ with a punitive discharge. After 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. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding a condition that partially excuse or mitigate the discharge. There is no evidence supporting the FSM had behavioral health related issue while on active duty and there is no history of VA medical treatment. The applicant did provide an autopsy report that listed the FSM as having a history of depression and chronic ethanol use, but this is not sufficient to establish a history of depression during active service. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the FSM 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 :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. ? REFERENCES: 1. Title 10, USC, 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. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 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 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. 4. 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. 5. 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. a. Paragraph 2-9 states 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. 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. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, to carefully consider the revised post- traumatic stress disorder (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. 7. 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 (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 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 8. 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, BCM/NRs 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) AR20220002659 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1