IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002883 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), with self-authored statement and a synopsis of his work history * Father's Prognosis Letter and Medical Bill * Mother's Social Security Benefits Letter * Associate in Applied Science Degree Certificate * Precision School Standard Certificate * Certificate of Baptism and Animal Care Specialist Exam, results * Bachelor of Science Transcript with Certificate and Home Inspector's Certificate * Christian Leaders Basic Course Certificate * School of Christ International Certificate * Caring for People God's Way Certificate * Certificate of Ordination (two) * Character Reference Letters (two) 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, in a five-page handwritten letter, that stressors of his family life caused him to go absent without leave (AWOL). His then fiancé and now wife of 53 years was pregnant and was not receiving help from her family or his. Additionally, he felt he should have been deferred from service due to asthma and a heart murmur from rheumatic fever. However, he could not get supporting medical documents prior to his draft physical. He further states on his discharge physical the doctor noted he heard heart problems. [Statement provided to the Board in its entirety] 3. The applicant's service record shows: a. On 29 April 1968, the applicant was inducted into the Army of the United States. His DD Form 47 (Record of Induction) shows no medical defects or diseases were noted when he was inducted. b. On 13 May 1968, the applicant reported to Fort Lewis, WA, where he completed his initial entry training. Upon completion he departed enroute to the U.S. Army Oversea Replacement Station, U.S. Army Personnel Center Fort Dix, NJ, on or about 7 September 1968. c. On 25 February 1969, the applicant was tried and found guilty by a special court- martial at Fort Riley, KS, of being AWOL, from the U.S. Army Personnel Center, Fort Dix, NJ, from on or about 3 October 1968 through on or about 13 January 1969. His sentence included hard labor without confinement for three months and forfeiture of pay for six months. The sentence was approved on 5 March 1969. d. On 7 May 1969, the applicant was tried and found guilty by a special court-martial at Fort Riley, KS, of being AWOL, from the Special Processing Detachment, Fort Riley, KS, from on or about 6 March 1969 to on or about 20 April 1969. His sentence included confinement at hard labor and forfeiture of pay for six months. On 13 May 1969, the sentence was approved (confinement at hard labor suspended for six months). e. On 3 April 1970, the applicant accepted non-judicial punishment, under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 20 March 1970 until on or about 29 March 1970. His punishment included reduction to Private/E-2 (suspended). f. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 18 April 1970 through 17 May 1970, and he was dropped from the unit rolls on 18 May 1970 until on or about 3 February 1971. g. On 9 February 1971, the applicant underwent a separation examination; his Report of Medical History indicates he previously suffered from mumps, frequent headaches, dizziness or fainting spells and a drug or narcotic habit. He checked no to previously having rhematic fever and asthma. His Report of Medical Examination shows there were no physical defects to warrant separation through medical channels. h. On 16 February 1971, the applicant's commander recommended separation action against the applicant under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), due to unfitness. As the specific reasons his commander noted the applicant's negative attitude and offenses totaling 493 days of bad time. i. On 17 February 1971, court-martial charges were preferred against the applicant, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 18 April 1970 until on or about 4 February 1971. j. On 2 March 1971, the applicant underwent a psychiatric evaluation, the examining psychiatrist noted the following: A review of this Soldier's military history indicated faulty judgment, noncommitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency to go AWOL when a stress arose. There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channel. This Soldier did not manifest a psychosis or neurosis, and further management was the command's prerogative. It was believed that he would not adjust to military service and further rehabilitative efforts would be nonproductive. The service member was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings. k. On 26 March 1971, the applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action. He understood his rights and elected to waive consideration of his case before a board of officers, further representation by counsel and not to submit a statement in his own behalf. l. On 2 April 1971, the separation authority approved the recommended separation action and directed the issuance of an Undesirable Discharge Certificate. m. On 9 April 1971, the applicant was discharged. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number "28B" by reason of unfitness. His service was characterized as UOTHC. He was credited with completing 1 year, 6 months, and 28 days of net service this period, with 212 days of lost time, and 281 days lost subsequent to normal expiration term of service. He was awarded or authorized three marksmanship badges. 4. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. The ADRB considered the applicant's request and determined he was properly and equitably discharged on 14 May 1979. 5. The applicant provides a handwritten letter as detailed above, three pages of work history, his father's prognosis letter and medial bill, his mother's social security benefits letter, a certificate of baptism, two ordination certificates, several training certificates, and transcripts. Additionally, he provides a character reference letter attesting to his activity level in the church to support his request for grant money and a second letter attesting to the high quality of his character as a Deacon for over 13 years. 6. 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. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. Based on the applicant's statement referring to medical conditions at the time of his discharge, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section. This agency does not provide copies of ARBA Medical Staff reviews to applicants and/or their legal representatives prior to adjudication of the case. 9. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his under conditions other than honorable 9 April 1971. He claims his periods of absence without leave were due to a childhood in “a dysfunctional blended family” and a critically ill father in in late 1970 and early 1971. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 29 April 1968 and received an under conditions other than honorable discharge on 9 April 1971 under the provisions provided in AR 635-212, Discharge – Unfitness and Unsuitability (21Janaruy 1970). The separation program number 28B denotes the reason for separation as “Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.” It shows 212 days lost under 10 USC § 972. c. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. d. The applicant’s Enlisted Qualification Record (DA Form 20) shows he was absent without leave (AWOL) from 3 October 1968 thru 12 January 1969, confined from 13 January 1969 thru 26 February 1969, AWOL from 6 March thru 19 April 1969, AWOL from 20-28 March 1970, and AWOL 18 April 1970 thru 3 February 1971. He later received an Article 15 for a 4-day period of absence without leave in July 1969. It shows no foreign service or campaigns. e. On 5 March 1969, the applicant was court-martialed for his 3 October 1968 thru 12 January 1969 period of AWOL. He pled and was found guilty and sentenced to 3 months hard labor without confinement with loss of $73 per month for 6 months. f. On 13 May 1969, he was court-martialed for his 6 March thru 19 April 1969 period of AWOL and again pled and was found guilty. He was sentenced to confined hard labor of 6 months and to forfeit $46 per month for six months. g. He received an Article 15 for his 20-28 March 1970 period of AWOL. h. His pre-separation Report of Medical History and Report of Medical Examination dated 9 February 1971 show the applicant to have been in good health, without significant medical history or conditions, and he was found qualified for separation. i. On 16 February 1971, his company commander recommended his discharge under paragraph 6a of AR 635-212. j. A 24 February 1971 statement from an associate professor of medicine at Creighton University shows the applicant’s father was critically ill: “Mr. {Applicant’s Father} is totally disabled. He has an encephalopathy presumably secondary to a brain abscess. He has been semi-comatose for several months. His prognosis is extremely poor.” k. His pre-separation psychiatric evaluation was completed by the division psychiatrist on 2 March 1971. The psychiatrist cleared the applicant for separation, opining: (1) A review of this soldier’s military history will indicate faulty judgement, noncommitment to productive goals, an incapacity to respond to rehabilitative efforts, resentment towards authority, and a tendency to go AWOL when stress arises. (2) There are no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. This Soldier does not manifest psychosis or neurosis, and his further management is the Commander’s prerogative. It is believed that he will not adjust to military service and further rehabilitation efforts will be nonproductive. (3) The service member was and is mentally responsible, able to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings. l. The applicant has no records in JLV. m. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. n. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a medical condition is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant's statement, record of service, the frequency and nature of the misconduct, and published DoD guidance for consideration of discharge upgrade requests. One possible outcome was to deny relief. However, the majority of Board members, notwithstanding the advisory, found the documentation attesting to his post- service achievements and letters of support sufficient to weigh in favor of a clemency determination. One Board member found the evidence insufficient to weigh in favor of relief. Based on the preponderance of documentation available for review, the Board determined the evidence presented sufficient to warrant recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 9 April 1971 showing • Characterization of Service: Under Honorable Conditions (General) • Separation Authority: No change • Separation Code: No change • Reentry (RE) Code: No change • Narrative Reason for Separation: No change 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 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 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 4. The Under Secretary of Defense (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) AR20220002883 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1