IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002860 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), with self-authored statement 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 he did serve more than three honorable years and advanced during those years. He also became an on-the-job cook and was cooking when he became a sergeant (SGT)/E-5. He served 3 years and 6 months and was promoted coming out of basic training and advanced to the rank of SGT. He reenlisted and soon became drug addicted. He stayed on drugs for almost 30 years. He is now clean and sober and has been clean and sober for the past 24 years. He also obtained his General Education Diploma (GED) while serving. 3. The applicant enlisted in the Regular Army on 30 January 1968, for 3 years. His military occupational specialty was 11B (Light Weapons Infantryman). 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 31 March 1969 for failing to acquire and register a firearm on 5 February 1968. His punishment consisted of extra duty, restriction, and forfeiture of $35.00 per month form one month. 6. He was honorably discharged on 29 October 1969 for the purpose of immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 9 months of net service this period. It also shows he was awarded or authorized: National Defense Service Medal, Parachutist Badge, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14). 7. The applicant reenlisted on 30 October 1969, for 4 years. He served in Germany from 1 September 1968 to on or about 8 September 1971. 8. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was reported as absent without leave (AWOL) during the following periods: * on or about 13 October 1970 to on or about 15 October 1970 * on or about 22 October 1970 to on or about 27 October 1970 * on or about 16 November 1970 to on or about 1 December 1970 * on or about 15 December 1970 to on or about 17 December 1970 * on or about 10 May 1971 to on or about 27 June 1971 9. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on: * 21 July 1970, for without authority failing to go at the time prescribed to his appointed place of duty on 14 July and 15 July 1970 (twice), and without authority, absenting himself from his unit from on or about 18 July 1970 to on or about 20 July 1970; his punishment consisted of reduction to specialist 4/SP4 and forfeiture of $55.00 for a period of two months * 19 August 1970, for without authority, absenting himself from his unit from on or about 8 August 1970 to on or about 12 August 1970; his punishment consisted of reduction to private first class/E-3 and extra duty * 23 September 1970, for without authority and with intent to avoid field exercises absent himself form his unit on 11 September 1970 and for being AWOL from his unit on or about 12 September 1970 to on or about 17 September 1970; his punishment consisted of forfeiture of $75.00 for two months 10. The applicant accepted NJP, under the provisions of Article 15 of UCMJ, on/for: * 9 March 1971, for using disrespectful language towards a superior noncommissioned officer on 27 February 1971; his punishment consisted of reduction to private/E-2 (suspended), forfeiture of $48.00 for one month and extra duty * 23 March 1971, for wrongful possession of marijuana on 22 March 1971, and unlawfully concealing a weapon (a switchblade knife) on 22 March 1971; his punishment consisted of reduction to private/E-2, forfeiture of $104.00 for two months, restriction and extra duty * 25 March 1971, for without authority absenting himself from his place of duty on 24 March 1971; his punishment consisted of forfeiture of $48.00 for one month and extra duty 11. An Extract Copy of Morning Report shows the applicant departed AWOL on or about 10 May 1971 and was dropped from the rolls on 9 June 1971. 12. Court-martial charges were preferred against the applicant on 29 June1971, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 10 May 1971 to on or about 27 June 1971, with intent to remain absent in desertion until he was apprehended. 13. The applicant consulted with legal counsel on 2 July 1971. a. He 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. b. 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. 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. c. He elected not submit to statements in his own behalf. 14. The separation authority approved the applicant's request for discharge on 26 July 1971, under the provision of Army Regulation 635-200, Chapter 10, for the good of the service. He further directed the applicant be furnished a DD Form 258A (Undesirable Discharge Certificate). 15. The applicant was discharged on 7 August 1971. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, with a characterization of service as under conditions other than honorable. He completed 1 year, 6 months, and 16 days of active service. He had 84 days of lost time. It also shows he was awarded or authorized the Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) and (M-16), and the National Defense Service Medal. 16. The Army Discharge Review Board (ADRB) considered the applicant's request for discharge upgrade on 18 December 1972 and 31 August 1984. The ADRB determined he was properly discharged and denied his petition for relief on both dates. 17. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 mental health conditions, including PTSD. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 18. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting upgrade of his under other than honorable conditions discharge to honorable. The applicant contends he served more than 3 honorable years before reenlisting and becoming addicted to drugs. 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 30 January 1968; 2) Court-martial charges were preferred against him on 29 June 1971 for going AWOL; 3) He was separated on 26 July 1971 under provisions of AR 635-200, Chapter 10, for the good of the service. b. Military medical records reviewed include the Standard Form 88 (Report of Medical Examination) dated 19 July 1971, finding the applicant medically cleared for separation. There is no evidence of the applicant receiving any BH-related treatment during his time in service. A review of the VA electronic record (JLV) is void of any medical treatment. The applicant has reportedly been incarcerated for the past 24 years. He reportedly became addicted to drugs shortly after reenlisting and continued use for more than 30 years. He has reportedly been clean since being incarcerated. c. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant did not have a condition or experience that mitigated his misconduct. Records are void of any history of BH diagnosis and/or treatment and no evidence was provided by that applicant. Substance use in absence of another BH condition is not considered mitigating under Liberal 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) No. Records are void of any history of BH diagnosis and/or treatment and no evidence was provided by that applicant. Substance use in absence of another BH condition is not considered mitigating under Liberal Consideration. (2) Did the condition exist or experience occur during military service? (a) N/A. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, medical review and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post- service achievements or letters of reference to weigh in support of a clemency determination. 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 :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, USC, 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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. 4. 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20220002860 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1