IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220006811 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with personal statement (two) * DD Form 214 (Report of Separation from Active Duty) * 30-Years of Service Recognition Certificate * Character Reference Letters (four) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 was young and not mature enough to handle the requirements the Army needed of a Soldier. He stole a car when he was young and was given the option of jail or the Army and he chose the Army. He had family issues that took his attention from his duties as a soldier. His mother was in the Veterans Administration (VA) hospital suffering from a nervous breakdown due to alcohol and prescription drug abuse. She is currently in a nursing home. His father was also an alcoholic who could not keep a job and did not take care of the family. He did not receive proper legal advice during his discharge. 3. By self-authored statement, dated 12 June 1990, the applicant reiterates the circumstances that led to his discharge and how he has changed his life. 4. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 5. By memorandum, dated 15 October 2022, the applicant was asked to provide medical documentation to support his PTSD issue. He was given a 30-day suspense of 15 November 2022; however, he did not respond. 6. The applicant at the age of 17-years old, with the consent of his father, enlisted in the Regular Army on 8 December 1972, for a 2-year term of service. 7. While still in a training status, the applicant was found guilty before a summary court- martial, at Fort Dix, NJ, on 13 June1973 of three specifications of being absent without leave (AWOL) from on or about 15 February 1973 through on or about 3 May 1973, from on or about 4 February 1973 to on or about 7 February 1973, and from on or about 25 January 1973 to on or about 29 January 1973. a. The court sentenced him to forfeiture of $100.00 pay for one month and 30 days of hard labor without confinement. b. The convening authority approved the sentence on 15 June 1973, except for the portion of hard labor without confinement for 30 days (suspended for 30 days). 8. Court-martial charges were preferred against the applicant on 24 January 1974 for violations of Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with four specifications of being AWOL, from on or about: * 7 August 1973 through 9 January 1974 * 9 July to 23 July 1973 * 15 February 1973 through 3 May 1973 * 4 February to 7 February 1973 9. The applicant consulted with legal counsel on or about 29 January 1974 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 a UOTHC discharge; and the procedures and rights that were available to him. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations), 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to submit a statement in his own behalf. 10. The applicant's immediate commander recommended approval of his request for discharge on 2 February 1974, with his service characterized as undesirable. 11. The separation authority on 18 February 1974 approved the applicant's request for discharge in lieu of court-martial and directed his reduction to the lowest enlisted grade with the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 11 March 1974. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of AR 635-200, paragraph 10. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC (Separation Code 246/Reentry Code 4). He was credited with 6 months and 23 days of net active service this period, with 259 days of lost time. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After review and consideration on 17 November 1988, the ADRB found his discharge was both proper and equitable and denied his petition for relief. 14. The applicant provides three-character reference letters that attest to him being an active member for over 12-years in his church. He coaches little league football, teaches Sunday school and vacation bible school. He has been a basketball official for over 6-years. He overcame a lot of obstacles having two parents that both dealt with alcohol issues. He is a good husband, who’s willing to help anyone in need. He deserves to have his discharge upgraded. 15. 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. 17. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Records are void of an in- or post-service behavioral health diagnosis for consideration. Accordingly, documentation is insufficient to make a determination; there is no medical mitigation. b. The applicant was discharged on 11 March 1974 under AR 635-200, Chapter 10, In Lieu of Trial by Court Martial, with an Under Other than Honorable characterization. The basis for separation was four AWOLs: 04 to 07 February 1973, 15 February to 03 May 1973, 09 to 23 July 1973, and 07 August 1973 to 09 January 1974. The applicant is requesting a characterization upgrade to General asserting he was young and not mature enough to handle the requirements of a Soldier, was experiencing family issues, and not given proper legal advice during discharge. Although not addressed in the applicant’s statement, the applicant checked PTSD on the DD Form 149. c. In November 1988, the applicant applied to the ABCMR requesting an upgrade. The Board determined the applicant’s discharge was proper and equitable, denying relief. Due to the period of service, electronic medical records are void. Hard copy medical records were unavailable for review. The applicant is not service connected and VA records are void of contact. The applicant did not submit medical records for review. Kurta Questions * Does the applicant have a condition or experience that may excuse or mitigate the discharge? NO. Documentation is void of an in- or post-service behavioral health condition. Moreover, while the applicant marked the PTSD box on the application, he did not include it in his self-authored statement or indicate a behavioral health condition contributed to the misconduct. * Did the condition exist or experience occur during military service? NA * Does the condition or experience actually excuse or mitigate the discharge?N/A * Does the condition or experience outweigh the discharge? N/A BOARD DISCUSSION: 1. The Board determined 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. 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 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 and result in an under other than honorable conditions discharge. He completed 6 months and 23 days of service with 259 days of lost time. He provided character reference letters that attest to him being an active member in his church, a coach of little league football, bible school-teacher, and basketball official. The Board determined based on published DoD guidance for liberal consideration of discharge upgrade requests, the Board determined an upgrade to a general discharge is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 11 March 1974, showing: * Character of Service: General, Under Honorable Conditions * Separation Authority: No Change * Separation Code: No Change * Reentry Code: 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. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 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, an UOTHC discharge was normally considered appropriate. 5. 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 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. 6. 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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 7. 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) AR20220006811 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1