IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220006902 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 was never in trouble his entire time in the service, and he hurt his knee while repelling in Germany. He went to the doctor on several occasions while in the service, but nothing was ever done. He went on leave in September 1977 and when he was scheduled to go back. His father talked him into staying and took him to the doctor where he eventually had knee surgery in December. He was an exemplary Soldier, and he feels that if the Army had taken his injury seriously, he would not have had to take matters into his own hands and have surgery while he was at home. He has had problems with his knee ever since. He was told by his command that he would be able to upgrade this and that is what he is trying to do. 3. The applicant enlisted in the Regular Army on 23 March 1976, for 3 years. In connection with his enlistment a physical examination shows he was qualified for service. His military occupational specialty was 11B (Infantryman). 4. The applicant served in Germany from 1 August 1976 through 29 September 1977. 5. The applicant’s medical document shows a left knee issue on 8 April 1977, that describes persistent pain and "giving way." 6. The applicant was on ordinary leave on 2 August 1977. He was reported as absent without leave (AWOL) on 30 September 1977 and dropped from the unit rolls (DFR) on 30 October 1977. 7. A DA Form 3835 (Notice of Unauthorized Absence from U. S. Army) dated 15 November 1977 shows in item 31 (Remarks) Family problems - mother states that she needs the applicant and will not allow him to return to duty. 8. The applicant surrendered to military authorities on 3 January 1978 at Fort Knox, KY. 9. The applicant underwent a separation examination on 5 January 1978, the Report of Medical Examination and Report of Medical History shows a left meniscectomy, 1 December 1977 during AWOL status at the applicant’s own expense. The applicant was qualified for separation. 10. Court martial charges were preferred against the applicant on 6 January 1978 for violation of the Uniform Code of Military Justice (UCMJ). His DA Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 30 September 1977 until on or about 3 January 1978. 11. The applicant consulted with legal counsel on 9 January 1978 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. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 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 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised that he could submit a statement in his own behalf. He submitted a statement that he wanted out of the Army because he was doing good until he was repelling and hurt his leg. He went to a doctor to try to see what was wrong with him and the doctor said nothing. He tried again and they played him off and said he was trying to get out of physical training. So, when he went on leave, he went to a civilian doctor and had an aspiration. The doctor told him his leg would be all right. The Army didn’t do anything for him or his leg, so he doesn’t want to do anything for the Army, and he didn’t want any part of it. He had a job starting the first of March and it was a good job if the Army would benefit him with a discharge. 12. The applicant’s commander recommended approval of his request for discharge. His chain of command recommended approval of his request for discharge in lieu of court-martial with recommendation of an UOTHC discharge. 13. On 6 March 1978, the separation authority approved the applicant's request for discharge and directed his reduction to the lowest enlisted grade and the issuance of an DD Form 794A (UOTHC Discharge Certificate). 14. The applicant was discharged on 24 March 1978. His 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. He was discharged in the lowest enlisted grade and his characterization of service was UOTHC (Separation Code JFS and Reentry Code 3/3B). He completed 1 year, 8 months, and 29 days of net active service, with 95 days of lost time. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) 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. 17. 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/or 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 24 March 1978 under other than honorable conditions discharge. He states: “I was never in trouble my entire time in the service and I hurt my knee while repelling in Germany. I went to the doctor on several occasions while in the service but nothing was ever done. I went on leave in September of 1977 and when I was scheduled to go back, my father talked me into staying and took me to the doctor where I eventually had knee surgery in December of 1977. I never was in any trouble and was an exemplary soldier and I feel that if the Army had taken my injury seriously, I would not {have} had to take matters into my own hands and have surgery while I was at Home. I also wish that I had not listened to my father and just went back but l did not want to go against him and stayed for the surgery.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 show he entered the regular Army on 23 March 1976 and was discharged under other than honorable conditions on 24 March 1978 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (1 December 1975): Discharge for the Good of the Service – Conduct Triable by Court Martial. c. The applicant’s Pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, without significant medical history or conditions. d. Military medical documentation shows he was evaluated for recurrent left knee giving away with swelling and pain on 8 April 1997 after having injured the knee in while repelling in March 1977. The examiner documented a small effusion and medial patellar tenderness with some crepitance (grinding) and popping with motion. Plain radiographs were normal, the applicant was started on conservative treatment, and he was referred to orthopedics for further evaluation. e. When seen by orthopedics on 18 April 1997, he was diagnosed with “possible” recurrent subluxation (partial dislocation) of the left patella and placed in a cylinder cast for 11 days. f. A Notice of Unauthorized Absence form United States Army dated 11 November 1997 show the applicant went absent without leave (AWOL) on 30 September 1977 and was dropped from rolls on 30 October 1977. Written in the remarks section: “Family problems – mother states that she needs service member and will not allow him to return to duty. Last known location: The applicant surrendered to military authorities at Ft. Knox, KY , on 3 January 1978. g. On the applicant’s pre-separation Report on Medical History completed 5 January 1978, the provider noted the applicant had undergone a left knee meniscectomy on 1 December 1977 at his own expense while he was AWOL. The applicant’s pre- separation Report of Medical Examination noted the applicant had a 1.5-inch scar on his left knee with the summary noting the applicant had undergone a left knee meniscectomy at his own expense. h. A charge Sheet (DD Form 458) shows the applicant was charged with a period of absence without leave from 30 September 1977 thru 3 January 1978. i. On 9 January 1978, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10, AR 635-200. He wrote in his statement: “I want out of the Army because I was doing good until I was repelling and hurt my leg and went to the doctors and try to see what was wrong with me and he said nothing. But my leg wasn’t and I try again and they play me off, said I was trying to get out of P.T. {physical training}. So when I went on leave, I went to a civilian doctor and had an operation the doctor told me that was the only way my leg would be all right. So the Army didn’t do nothing for me or my leg so I don’t want to do nothing for the Army and don’t want any part of It. I just want out and that’s it. I have a job starting the first of March and it a good job if the Army benefit me with a discharge to a good job.” j. The commanding general of the US Army Armor Center and Fort Knox approved his request on 6 March 1978 with the direction his service be characterized an under other than honorable conditions. k. It is the opinion of the ARBA Medical Advisor that neither an upgrade of his discharge nor a referral to the Disability Evaluation System is 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 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. 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 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. Title 10, U.S. Code, 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 635-200 (Personnel Separations-Enlisted Personnel) 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 of that regulation provided, in pertinent part, 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, a UOTHC discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards 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) AR20220006902 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1