IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220004688 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions characterization of service to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Reconsideration Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150014596, on 5 January 2017. 2. The applicant states: * the Board did not consider his mental state of health or his physical state of health * when he got to Fort Benning, GA, he blew out his shoulder * he was severely beaten and told he did not belong; after the beating, he woke up but did not know where he was or who he was * he asked for help, time and time again, but he was denied * he is now a proud husband, father, and grandfather; trying to restore the honor and dignity; he is just trying to wright the wrong 3. On 16 November 2022, the Case Management Division dispatched a letter to the applicant informing him that for the Army Board for Correction of Military Records (ABCMR) to consider his application, he must provide a copy of the medical documents that support his mental and physical health issues. If did not have a copy of these documents, he could contact the doctor that diagnosed him or his Department of Veteran Affairs (VA) Regional Office for assistance. The applicant did not respond to this letter. 4. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 12 April 1978. He held military occupational specialty 11B, Infantryman. He was assigned to Company D, 7th Battalion, 1st Training Brigade, located at Fort Benning, GA. b. In August 1978, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 6 August through on or about 21 August 1978. c. On 27 October 1978, he was again reported in an AWOL status, and on 26 November 1967, he was dropped from the rolls as a deserter. He returned to military control on 1 September 1978. He was assigned to Special Processing Company Fort Knox, KY, for disposition of his case. d. On 27 October 1978, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) show she was charged with one specification of being AWOL from on 27 October 1978 for being AWOL from on or about 1 September 1978 through on or about 24 October 1978. e. On 31 October 1978, the applicant consulted with legal counsel and 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. After receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated * he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate * he acknowledged he had been advised of the possible effect of an under other than honorable conditions discharge. * he understood that he may be deprived of many or all Army benefits, that he may 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 laws * he elected to submit a statement on his own behalf, wherein he stated: f. In his statement, the applicant stated that he is 19 years of age and only had 9th grade education. He joined the Army because his parents wanted him to, and he was an infantryman. He couldn't take it anymore; he just wanted to go his own way and to get married to his girlfriend. He believed that if he got out of the Army, he could enjoy life again. g. The applicant’s chain of command recommended approval of his request for discharge. The commander stated the applicant’s conduct has rendered him triable by court­ martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his previous record, punishment can be expected to have a minimal rehabilitative effect. He believed a discharge at this tine to be in the best interest of all concerned. h. On 1 December 1978, the separation authority approved his request and directed the issuance of an under other than honorable conditions discharge. The applicant was discharged accordingly on 10 January 1979. i. The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial with his service characterized as under other than honorable conditions (Separation Code JFS and Reentry Codes 3 and 3B). He completed 6 months and 21 days of active service and he had 68 days of lost time as well as 72 days of excess leave. j. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. k. On 5 January 2017, the Board considered his request for an upgrade and denied it. The Board stated: (1) The evidence of record shows the applicant was AWOL from on or about 1 September 1978 through on or about 24 October 1978. After consulting with legal counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the discharge process. (2) His record of indiscipline during his brief period of service includes NJP for an AWOL offense and court-martial charges for another AWOL offense. Based on his record, the separation authority determined his service would be characterized as under other than honorable conditions. (3) 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. 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 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a reconsideration of the ABCMR’s 5 January 2017 denial of his request for an upgrade of his 10 January 1979 discharge characterized as under other than honorable conditions. He states in part: The Board did not consider my mental state of health or my physicals state of health ... Got to Ft. Benning, GA, blew out my left shoulder, can you find the record? I was severely beaten several times. They said I was “different”, you don’t belong here. After one beating, I woke up, didn’t know where I was or who I was. This happened again, can you please find the record? … I forgive all who had beaten be, I’m just truing to right the wrong. Please help me.” c. The Records of Proceedings detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 12 April 1978 and was discharged on 10 January 1979 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 March 1978): Discharge for the Good of the Service – Conduct Triable by Court Martial. It documents 124 days of time lost through two periods of absence without leave (AWOL); 6 February 1979 thru 26 February 1979 and 12 March 1979 thru 24 June 1979 d. This request was denied by the ABCMR on 5 January 2017 (AR20150014596). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. The applicant’s request in this case is essentially the same as seen in the prior ROP: “The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. The applicant states, in effect, he was an outstanding Soldier when he served; however, he became physically and mentally hurt at the time and his performance dropped off. He made the wrong decisions; however, he would now like closure and peace of mind.” e. There is no evidence that a medical advisory opinion was obtained in that case or that consideration was given to the application of liberal consideration polices to a possible mitigating mental health condition. As such, this review will concentrate on new evidence and evidence the applicant had a potentially mitigating mental health condition prior to discharge f. No additional evidence was submitted with the case file. There is no medical evidence in the case file and his service predates AHLTA. He is not registered for care with the VA g. Review of the applicant’s redweld found he was seen on several occasions for left shoulder pain/instability shortly after coming on active duty. He was also seen on several occasions for minor viral illnesses. However, there is no evidence the applicant was evaluated or treated for injuries due to an assault, or that he had a mental health condition while in service. He underwent his pre-separation examination on 31 October 1978 at which time he wrote his health was “good.” The Report of Medical History and Report of Medical Examination show the applicant to have been in good health, without any significant medical history or conditions. h. Given no evidence of a mitigating mental health conditions, it is the opinion of the ARBA that a discharge upgrade is currently unwarranted. If the applicant were to have evidence of the assaults and/or evidence of having developed a potentially mitigating mental health concern related to his military service, a reconsideration of his application would certainly be warranted. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense (AWOL) 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 insufficient evidence of in- service mitigating factors to overcome the misconduct. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20150014596, on 5 January 2017. 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. Army Regulation (AR) 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. 2. 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. 3. 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. 4. 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. 5. 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) AR20220004688 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1