IN THE CASE OF: 

		BOARD DATE: 8 February 2023

		DOCKET NUMBER: AR20220003862


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions 
discharge to either honorable or general. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	3 DD Forms 149 (Application for Correction of Military Record)
*	Letter related to Hepatitis C
*	Letter related to anxiety 

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 is requesting an upgrade of his discharge because of 
developing a dependence on heroin only after joining the Army and being so very far 
away from home for the first time in his young life that caused him grief and anxiety. The 
age of 18 is a very impressionable age as it certainly was for him. When he returned 
home to it wasn't easy to hold a job due to his dependence on heroin. Around 1984, he 
was treated for this addiction at General Hospital, located at [Address]. He has been 
drug-free now for the past 30 years and he still has a lot of regret and shame connected 
with his past drug use and his "Under Other Than Honorable Conditions Discharge". It's 
his sincere hope and prayer that the United States Government will help right one of the 
wrongs, such as easy accessibility of illicit drugs to American soldiers that resulted with 
his addiction and instead of treatment, he accepted an "Under Other Than Honorable 
Conditions Discharge" to prevent a possible court-martial after being found with drugs in 
his possession. 

3.  The applicant provides: 

	a.  Letter, dated 17 May 2022, from The Institute for Digestive Health and Liver 
Disease at e, certifying that the applicant is a patient under their care for Cirrhosis of the 
Liver secondary to Hepatitis C. The applicant is likely to have contracted Hepatitis C as 
a result of intravenous drug use over 30 years ago. His Hepatis C was treated in 2018 
and has remained undetectable since then. He continues to follow up with me regarding 
his cirrhosis once a year. 

	b.  Letter dated 15 June 2022, from Precision Mental Health, that states the 
applicant is being seen for treatment of anxiety. Please reach out if for questions.

4.  Review of the applicant’s service records shows: 

	a.  The applicant enlisted in the Regular Army on 21 June 1977. He held military 
occupational specialties 12B (Combat Engineer). 

	b.  He served in Germany from 26 September 1977 to 26 May 1979.  

	c.  On 16 March 1979, court-martial charges were preferred against the applicant. 
His DD Form 458 (Charge Sheet) is not available for review. 

*	one specification of wrongfully having in his possession 1.13 grams, more or 
less, of marijuana
*	one specification wrongfully selling marijuana
*	one specification wrongfully having in his possession .35 grams, more or less, of 
heroin

   d.  On 9 April 1979, the applicant consulted with legal counsel. He was advised of 
the basis for the contemplated trial by court-martial for an offense punishable by a bad 
conduct discharge or a dishonorable discharge, the maximum permissible punishment 
authorized under the UCMJ, the possible effects of a request for discharge, and of the 
procedures and rights that were available to him. Following consultation with legal 
counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-
martial. In his request for discharge, he indicated:

*	he was making this request of his own free will and had not been subjected to 
any coercion by any person 
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge
*	he understood that, if his request for discharge is accepted, he may be 
discharged under conditions other than honorable and furnished an Under 
Other Than Honorable Discharge Certificate
*	he acknowledged he understood that if the discharge request was approved, 
he could be deprived of many or all Army benefits, that he could be ineligible 
for many or all benefits administered by the Veterans Administration (VA), 
and that he could be deprived of his rights and benefits as a veteran under 
both Federal and State law
*	he stated "under no circumstances do I desire further rehabilitation for I have 
no desire to perform further military service"
*	he elected not to submit a statement in his own behalf 

	e.  The applicant’s immediate, intermediate, and senior commanders all 
recommended approval with issuance of an under other than honorable conditions 
discharge. 

	f.  On 19 April 1979, the separation authority approved the applicant's request for 
discharge under the provisions of AR 635-200, chapter 10, for the good of the service - 
in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued 
an under other than honorable conditions discharge. The applicant was accordingly 
discharged on 29 May 1979. 

	g.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court-
martial) of AR 635-200 with an under other than honorable conditions characterization 
of service (Separation Code JFS, Reentry Code 3). He completed 1 year, 11 months, 
and 9 days of active service. He was awarded or authorized three marksmanship 
badges. 

	h.  There is no indication he petitioned the Army Discharge Review Board for review 
of his discharge within that board’s 15-year statute of limitations. 

5.  By regulation (AR 635-200), Chapter 10: 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. A discharge under other than honorable 
conditions is normally considered appropriate.

6.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

7.  MEDICAL REVIEW:

    a.  The applicant is applying to the Army Board for Correction of Military Records 
(ABCMR) for an upgrade of his under other than honorable conditions (UOTHC) 
discharge. He contends he had a mental health condition, which 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 21 June 1977; 2) On 16 March 1979, court-
martial charges were preferred against the applicant for possession and selling of 
marijuana and possession of heroin; 3) The applicant was discharged on 29 May 1979, 
Chapter 10 (in lieu of trial by court-martial), and 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) and hardcopy civilian treatment records were also examined. 

    d.  The applicant asserts he was experiencing anxiety and grief from being far from 
home. There is no evidence the applicant was diagnosed or treated for a mental health 
condition while on active service, and a review of JLV is void of medical records.  The 
applicant did provide documentation that he has be treated for physical complications 
likely resultant from intravenous drug use. The letter was dated 17 May 2022, and was 
from the Institute for Digestive Health and Liver Disease at. The applicant also provided 
a letter from Mental Health in stating the applicant is being treated for anxiety. However, 
the civilian behavioral health provider did not report the applicant’s symptoms of anxiety 
were related to his active service 44 years prior. The letter was dated 15 June 2022. 
The applicant has no service-connected disabilities.  

    e.  Based on the available information, it is the opinion of the Agency BH Advisor 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated his misconduct. 

Kurta Questions

A.	Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? Yes, the applicant contends he was experiencing anxiety and grief 
which contributed to his misconduct.

B.	Did the condition exist or experience occur during military service?  Yes, the 
applicant contends his anxiety and grief occurred while on active service.

C.	Does the condition experience actually excuse or mitigate the discharge? No.  
There is no evidence beyond self-report that the applicant was experiencing 
anxiety and grief, while on active service. In addition, the applicant was found 
guilty of possession and selling marijuana and possession of heroin, and not 
solely wrongful usage. There is no nexus between his report of mental health 
condition sand this type of misconduct given that: 1) this type of misconduct is 
not part of the natural history or sequelae of these conditions; 2) they do not 
affect one’s ability to distinguish right from wrong and act in accordance with the 
right. However, the applicant contends mental health conditions resulted in his 
misconduct, and per the Liberal Consideration Policy, his contention is sufficient 
for consideration.  


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 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. As noted, there is 
no evidence beyond self-report that the applicant was experiencing anxiety and grief, 
while on active service. In addition, the applicant was found guilty of possession and 
selling marijuana and possession of heroin, and not solely wrongful usage. There is no 
nexus between his report of mental health condition sand this type of misconduct given 
that: 1) this type of misconduct is not part of the natural history or sequelae of these 
conditions; 2) they do not affect one’s ability to distinguish right from wrong and act in 
accordance with the right. Based on preponderance of evidence, the Board determined 
relief was not warranted and 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.


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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel. Chapter 10 provides 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.

	a.  Paragraph 3-7a states 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 states 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.  

3.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) 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, 
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.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole, or in part, to:  mental health conditions, including PTSD; TBI; 
sexual assault; sexual harassment.  Boards were directed to give liberal consideration 
to Veterans petitioning for discharge relief when the application for relief is based in 
whole or in part to 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 that misconduct which led 
to the discharge.

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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.  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.  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.
6.  Section 1556 of Title 10, United States Code, 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220003862


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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