IN THE CASE OF: BOARD DATE: 29 November 2022 DOCKET NUMBER: AR20220006819 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 4 April 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 14 September 1987 * Letter, Centerville Clinics, 30 January 2013 * self-authored statement, 4 April 2022 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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, in effect, it has been 35 years since he served his country with no criminal record. He is permanently disabled with conditions that affected his mental health prior to enlistment. He suffers from Attention-Deficit/Hyperactivity Disorder and (ADHD) and Obsessive Compulsive Disorder (OCD), and anxiety and depression. He lost his father at age 12 which left him unable to adjust to life. Military life confused him, mistakes were made, but many lessons were learned. He has led a quiet, lawful civilian life and has accomplished good things. He is married with children and has a home of his own. He has lived an honorable life since leaving the post in which he proudly served. 3. The applicant enlisted in the Regular Army on 8 November 1984. The highest grade he held was specialist (SP4)/E-4. 4. A DA Form 4187 (Personnel Action), dated 3 June 1987, shows he was reduced in rank/grade to private first class (PFC)/E-3. 5. On 29 July 1987, Specialist (SP4) provided a sworn statement to the Fort Ord Criminal Investigation Division (CID). a. SP4 E stated, in effect, on 28 July 1987, he allowed PFC to borrow his car. Several hours after returning the car, PFC informed SP4 E that he left his keys in the car. SP4 loaned PFC his car keys. PFC returned the car keys to SP4 approximately three and a half hours later. b. On 29 July 1987, SP4 received a telephone call from the Main Post Exchange (PX). The caller stated a guy named cashed a check against SP4 E's account for $100.00. The caller suspected the check was forged. SP4 informed the caller he did not authorize to cash the check, nor did he write a check to him. SP4 went to the PX and verified he did not write the check. The Military Police (MP) were notified. 6. A CID report, dated 30 July 1987, shows a preliminary inquiry in which SP4 alleges PFC stole three personal checks from him, forged his signature on one of the checks and negotiated the check, in the amount of $100.00, at the PX. The details of the report were subject to change prior to the completion of the investigation. 7. Two DA Forms 4187 show the following changes in his duty status: * Present for duty (PDY) to Absent Without Leave (AWOL) - 31 July 1987 * AWOL to Military Confinement - 24 August 1987 8. A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 24 August 1987, shows an Army CID investigator wanted to question the applicant for the suspected offenses of forgery and larceny. The applicant waived his rights and chose to discuss the offenses under investigation without a lawyer being present. 9. In a sworn statement, dated 25 August 1987, the applicant stated, in effect: a. He took three checks from SP4 car on 28 July 1987. The same day, he forged one of the checks, in the amount of $100.00, and cashed it at the PX. b. On 29 July 1987, he forged and cashed a second check for $100.00 at the PX. He tore up and threw away the third check. c. He used the $200.00 to go AWOL and return to his home. He was on the verge of a nervous breakdown. He was not in the right state of mind. He was in a bad situation with his wife. He needed to get away and straighten his life out. He knew he did wrong and was willing to accept responsibility but did not feel punishment would help him mentally. He felt he needed to be released from the Army. 10. A DD Form 629 (Receipt for Prisoner of Detained Person) shows he was released from confinement and returned to his unit on 25 August 1987. 11. A DA Form 4187 shows his duty status changed from Military Confinement to PDY on 25 August 1987. 12. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him on 28 August 1987, for the following violations: * Stealing three blank checks, the property of SP4 E, on or about 28 July 1987 * Stealing $200.00, the property of the Army and Air Force Exchange, on or about 29 July 1987 * Intent to defraud, falsely making the signature of SP4 E, on or about 28 and 29 July 1987 * AWOL on or about 31 July 1987 to on or about 24 August 1987 13. He consulted with legal counsel on or about 28 August 1987. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 14. His immediate and intermediate commanders recommended approval of the request for discharge in lieu of trial by court-martial, with a service characterization of UOTHC, on 31 August 1987. 15. The separation authority approved the recommended discharge on 1 September 1987, directed the applicant be reduced to the lowest enlisted grade private (PVT)/E-1, and be issued an UOTHC discharge. 16. Orders 169-327, Headquarters, 7th Infantry Division (Light), Fort Ord, CA, 3 September 1987, shows he was reduced in grade of rank from PFC/E-3 to PVT/E-1, effective 1 September 1987. 17. His DD Form 214 shows he was discharged on 14 September 1987, in lieu of trial by court-martial, under the provisions of AR 635-200, chapter 10, in the rank/grade of PVT/E-1, with an UOTHC character of service. His DD 214 does not reflect any personal decorations, but it does show he completed 2 years, 9 months and 14 days of active service with lost time from 31 July 1987 to 23 August 1987. 18. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 19. The applicant provides a letter from Centerville Clinics, dated 30 January 2013. The applicant was undergoing treatment for the following conditions: * Back pain * Food intolerance and intestinal issues * Depression * Bipolar Disorder * Attention Deficit * Obsessive Compulsive Disorder 20. Discharges under the provisions of AR 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An under other than honorable conditions character of service is normally considered appropriate. 21. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 22. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions that 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 into the Regular Army on 08 November 1984; 2) On 28 August 1987, he was charged with stealing three blank checks from another Soldier, stealing $200, intent to defraud, and going AWOL; 3) The applicant was discharged on 14 September 1987, in lieu of trial by court-martial, chapter 10, with an UOTHC character of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. d. JLV was void of behavioral health records, and the applicant receives no service- connected disability. The applicant stated he has history of mental health conditions prior to his enlistment, which were exasperated by his military service. He reported being diagnosed with ADHD, OCD, and anxiety and depression. He also provided documentation, dated 20 January 2013, from a medical provider that he is being treated for multiple medical disorders and under the care of a psychiatrist for depression, bipolar disorder, AD, and OCD. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has BH conditions, which were exasperated by his military service and mitigate some of his misconduct. There is a nexus between his diagnoses of mental health conditions and going AWOL. However, there is no nexus between his behavioral health conditions and stealing and writing fraudulent checks. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with multiple mental health conditions, which he asserts he struggled with prior to his enlistment. The applicant reported these conditions were exasperated by his service in the Army. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions while in active service. (3) Does the condition experience actually excuse or mitigate the discharge? Partially. As some of his reported mental health conditions are consistent with avoidant behavior, there is a nexus between some of his mental health conditions and going AWOL. However, there is no nexus between his mental health conditions and theft and writing fraudulent checks given that: 1) this misconduct is not part of the natural history or sequelae of his mental health 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 his diagnoses resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. 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. a. The applicant was clearly charged with commission of an offense (or offenses) 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. b. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official finding. The applicant contends he was experiencing depressive symptoms that contributed to his misconduct and that his depressive symptoms occurred while on active service. The Board reviewed the medical advisor’s finding that based on the available information, the applicant has behavioral health conditions, which were exasperated by his military service and mitigate some of his misconduct. There is a nexus between his diagnoses of mental health conditions and going AWOL. However, there is no nexus between his behavioral health conditions and stealing and writing fraudulent checks. Based on that, the Board determined that the applicant’s service clearly did not rise to the level required for an honorable discharge; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. c. The Board noted there is no change to the narrative reason for separation, separation Code, and RE Code. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 14 September 1987 showing his character of service as Under Honorable Conditions, General. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable 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, United States 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), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation 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. b. 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. c. 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 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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. 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. 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. 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) AR20220006819 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1