IN THE CASE OF: 

		BOARD DATE: 28 February 2023

		DOCKET NUMBER: AR20220007095


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 
(UOTHC) discharge to under honorable conditions (general). Additionally, he requests 
an appearance before the Board via video/telephone.

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 abused all his life by his father. When he left home, his 
father chased him, shooting at him. His father wanted him to hit him, the applicant 
refused. His father called the police and said the applicant was on drugs. He was put 
into juvenile hall and tested for drugs. No drugs were found. They wanted him to go 
back home, he refused so the military was the option. He was not mature enough and 
had a problem with authority. In 1967 his mother wrote a letter informing him that his 
sister was in the hospital mental ward due to their father raping her. The applicant 
requested emergency leave and he was denied, so he left. His father molested all four 
of his sisters. Since he left the military, he has not been in any trouble of any kind. He’s 
been married for 53 years and has five grown children. He has been a pastor since 
1990 to the present. He has the most respect for our military, his sons were in the Navy, 
Army, and Air Force. The issues/conditions related to his request are post-traumatic 
stress disorder (PTSD) and traumatic brain injury (TBI).

3.  The applicant enlisted in the Regular Army on 10 December 1965, for 3 years. The 
applicant's age at enlistment was 17 years. He completed basic combat training. He did 
not complete advanced individual training (AIT).

4.  The applicant accepted nonjudicial punishment under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ) on 30 March 1966, for absenting himself 
from his unit without permission on or about 21 March 1966 and did remain so absent 
until on or about 29 March 1966. His punishment consisted of forfeiture of $20.00 per 
month for one-month, extra duty, and restriction. 

5.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows in item 38 
(Record of Assignments) the applicant was absent without leave (AWOL) while in AIT:

*	from on or about 16 May 1966 and was dropped from the rolls of his unit as a 
deserter on or about 15 June 1966
*	he was confined to the post stockade on or about 3 October 1966
*	he was enroute to Fort Riley, KS, on or about 21 April 1967
*	he was again AWOL on or about 28 May 1967 and dropped from rolls as a 
deserter on or about 22 August 1967

6.  The applicant’s DA Form 20B (Insert) and Special Court Marshal Orders show:

*	before a Special Court Martial (SPCM) on 8 September 1966 the applicant was 
found guilty of AWOL from on or about 16 May 1966 to on or about 
13 September 1966; he was sentenced to confinement at hard labor for six 
months (suspended in excess of one month), forfeiture of $64.00 per month for 
6 months; the sentence was adjudged on 3 October 1966
*	SPCMO Number 4, dated 20 January 1967, shows the unexecuted portion of the 
sentence would be duly executed on 20 January 1966
*	SPCMO 36, dated 2 April 1967, shows SPCMO 49 was suspended for two 
months, unless the suspension was sooner vacated, the suspended portion of 
the sentence would be remitted without further action 
*	before a SPCMO on 13 October 1967 the applicant was found guilty of AWOL 
from on or about 28 May 1967 to on or about 7 September 1967; he was 
sentenced to confinement at hard labor for 6 months and forfeiture of $64.00 per 
month for 6 months, the sentence was adjudged on 11 October 1967

7.  The applicant underwent a medical examination on 25 October 1967. His Report of 
Medical History shows in item 19 (Physician Summary) the applicant had nervous 
trouble and felt edgy all the time.

8.  A Mental Hygiene consultation, dated 3 November 1967 shows the applicant stated 
he had gone AWOL four times for approximately a total of eleven months, the reason 
was his mother was ill, and he didn’t like the Army. The applicant’s father was in a 
mental hospital for sex offenders. His father had offended his sisters and his sisters had 
received psychiatric attention. He quit high school after the 11th grade because he 
didn’t like it. He had conflict with civilian authorities for stealing a motorcycle and had 
problems with military authorities for his AWOL’s. He had been married for six months 
and started having no problems with his marriage. He did not plan to complete his tour 
of duty. He was diagnosed was immature personality, chronic, moderate, manifested by 
poor judgement, resentment of authority, and impulsive behavior. The psychiatrist 
presumed that the longstanding character and behavior disorder would exist 
permanently. The applicant was recommended for administrative separation.

9.  The applicant consulted with legal counsel on 7 November 1967 and was advised of 
the basis for the contemplated separation under the provisions of Army Regulation (AR) 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for 
unfitness. He waived consideration of his case by a board of officers and waived 
personal appearance before a board of officers. He elected not to submit statements in 
his own behalf, and he waived representation. 

10.  The applicant’s commander formally recommended his elimination under the 
provisions of AR 635-212, based on unfitness. His commander noted, the applicant had 
been AWOL on three separate occasions with a total of 119 days lost, he spent 285 
days in confinement for these offenses. This did not include time spent in the stockade 
since his last confinement on 22 August 1967, from which he had not been released. 
Thus, he had lost 404 days, not to include his present confinement. 

11.  The applicant signed a waiver indicating he had little or no interest in the military. 
The chain of command concurred with the applicant’s discharge based on unfitness.

12.  SPCMO Number 11, dated 27 November 1967, shows the unexecuted portion of 
the sentence, SPCMO 357, adjudged on 13 October 1967 was remitted effective the 
date the applicant was discharged from the military service.

13.  The approval authority approved the recommended discharge for unfitness and 
directed the issuance of an Undesirable Discharge Certificate.

14.  The applicant was discharged on 22 December 1967. His DD Form 214 (Armed 
Forces of the United States Report of Transfer or Discharge) shows he was discharged 
under the provisions of AR 635-212 with SPN 28B (unfitness). His characterization of 
service was UOTHC (Separation Code 28B, Reentry Code 3B/3C). He completed 7 
months and 14 days of net active service. He lost time from 16 May through 15 
September 1966, 3 October through 27 October 1966, 19 November 1966 through 20 
April 1967, and from 28 May through 21 December 1967. He was awarded or 
authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.

15.  On 25 April 1978, the Army Discharge Review Board determined that the applicant 
was properly discharged. His request for a change in the type and nature of his 
discharge, under the "DOD Discharge Review Program (Special)" was denied.
16.  By regulation, an individual is subject to separation when it is clearly established 
that despite attempts to rehabilitate or develop him as a satisfactory Soldier further 
effort is unlikely to succeed.

17.  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.

18.  Published guidance to the BCM/NRs 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.

19.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his UOTHC 
discharge and an appearance before the Board.

    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 reports a history of abuse by his father. In 1967 his mother wrote a 
letter informing him that his sister was hospitalized after his father raped her. He 
left after his emergency leave request was denied. He now has been married for 
53 years with 5 adult children and has been a pastor since 1990.  He asserts 
PTSD and TBI as associated with his request.
(2)	He enlisted into the RA on 10 December 1965.
(3)	He accepted NJP for AWOL from o/about 21 March 1966 to on/about 29 March 
1966.
(4)	Other records show he was AWOL from on/about 16 May 1966 and DFR on 15 
June 1966; he was confined to the post stockade on/about 3 October 1966; he 
was again AWOL on/about 28 May 1967 and DFR on 22 August 1967.
(5)	Before a special court-martial on 8 September 1966, he was found guilty of 
AWOL from on/about 16 May 1966 to on/about 13 September 1966.
(6)	Before a special court-martial on 13 October 1967, he was found guilty of AWOL 
from on/about 28 May 1967 to on/about 7 September 1967.
(7)	Per medical examination of 25 October 1967, the applicant had nervous trouble 
and felt edgy all the time.
(8)	Mental Hygiene consultation dated 3 November 1967 references in part his 
father’s history as a sex offender; his sisters receiving psychiatric attention; and 
problems with military authorities.  He was diagnosed with immature personality, 
chronic, moderate, manifested by poor judgment, resentment of authority, and 
impulsive behavior.  He was recommended for administrative separation. 
(9)	Applicant was discharged on 22 December 1967 under AR 635-212 with SPN 
28B (unfitness), UOTHC.
    c.  Supporting Documents

All supporting documents reviewed.  Lack of citation or discussion in this section should 
not be interpreted as lack of consideration.  DD Form 149 references PTSD and TBI 
associated with application. A statement of support (presumably by applicant’s mother) 
dated 7-18-1977 references that applicant worked and helped pay bills during his 
AWOL, and described a history of incest by his father to include hospitalization of one of 
the writer’s daughters due to “torment he put her through.”

    d.  AHLTA 
The Army electronic medical record, AHLTA, was not reviewed; it was not an existing 
EMR at the applicant’s time of service.

    e.  JLV Available VA records were reviewed via JLV.  There is no indication of any 
service-connected conditions, and the records are void of clinical data.

    f.  Other 
Query of HAIMS did not return any documents for this applicant.

Kurta Questions:

		(1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes. The applicant asserts PTSD and TBI 
associated with the circumstances of his discharge. 

		(2)  Did the condition exist or experience occur during military service? Yes. The 
applicant’s assertion is supported by medical documentation describing anxiety, as well 
as a mental health consult indicative of a very dysfunctional and traumatic family 
background.

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
Yes.  The applicant asserts mitigation due to PTSD and TBI at the time of his 
offense/discharge.  His assertion alone is worthy of consideration by the Board.  The 
agency BH advisor finds compelling evidence of problematic anxiety and a traumatic 
family history which appears consistently documented throughout available records. 
PTSD was not formally diagnosed as a psychiatric disorder until 1980; although the 
nomenclature used by the evaluating psychiatrist utilized diagnostic terms for the day 
(since outdated), it is reasonable conjecture under liberal consideration guidelines that 
applicant’s functioning at the time was indicative of what is now known as PTSD.  There 
is less evidence of potential TBI in the record.  Given that PTSD is often manifested 
through avoidance behavior (to include AWOL) and problems with authorities (which 
appears especially relevant to applicant’s case given the reported nature of his father’s 
behavior), there appears to be a nexus between his psychological functioning and the 
behaviors leading to discharge. Upgrade is warranted.

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 discharged from active duty on 22 
December 1967 under the provisions of AR 635-212 due to unfitness with an under 
other than honorable conditions characterization of service. He completed 7 months and 
14 days of net active service and he had 509 days of lost time. The Board considered 
the medical records, any VA documents provided by the applicant and the review and 
conclusions of the advising official. The applicant asserts mitigation due to PTSD and 
TBI at the time of his offense/discharge. The Board concurred with the medical advisory 
opinion finding evidence of problematic anxiety and a traumatic family history which 
appears consistently documented throughout available records and that there appears 
to be a nexus between his psychological functioning and the behaviors leading to 
discharge. While his service clearly did not rise to the level required for an honorable 
discharge, based on published DoD guidance for liberal consideration of discharge 
upgrade, the Board determined an upgrade of the characterization of service to general, 
under honorable conditions 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 22 December 1967 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, 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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. 

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that 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.

3.  Army Regulation 635-212 (Personnel Separations-Discharge Unfitness and 
Unsuitability), in effect at the time, set forth the basic authority for the separation of 
enlisted personnel. Paragraph 6a (1) of the regulation provided, in pertinent part, that 
members involved in frequent incidents of a discreditable nature with civil or military 
authorities were subject to separation for unfitness. An undesirable discharge was 
normally considered appropriate.

	a.  Despite attempts to rehabilitate or develop him as a satisfactory Soldier further 
effort is unlikely to succeed.

	b.  Rehabilitation is impracticable (as in cases of confirmed drug addiction), or he is 
not amendable to rehabilitation measures (as indicated by medical and/or personal 
history record.

	c.  An unfitting medical condition (AR 40-501) is not the direct or substantial 
contributing cause of his unfitness (para 9b).

     d.  Paragraph 1-9f (Issuance of an undesirable discharge) states an undesirable 
discharge is an administrative separation from the service under conditions other than 
honorable.
     e.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a 
separation with honor.  The honorable characterization is appropriate when the quality 
of the Soldier’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.

     f.  Paragraph 3-7b (General Discharge) states A general discharge is a separation 
from the Army under honorable conditions.

4.  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.

5.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) 
and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 
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.  The Under Secretary of Defense for Personnel and Readiness provided clarifying 
guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The 
memorandum directed them to give liberal consideration to veterans petitioning for 
discharge relief when the application for relief is based in whole or in part on matters 
relating to mental health conditions, including PTSD, TBI, 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.

	a.  Guidance documents are not limited to UOTHC discharge characterizations but 
rather apply to any petition seeking discharge relief including requests to change the 
narrative reason, re-enlistment codes, and upgrades from general to honorable 
characterizations.
	b.  An honorable discharge characterization does not require flawless military 
service. Many veterans are separated with an honorable characterization despite some 
relatively minor or infrequent misconduct.

	c.  Liberal consideration does not mandate an upgrade. Relief may be appropriate, 
however, for minor misconduct commonly associated with mental health conditions, 
including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual 
harassment; and some significant misconduct sufficiently justified or outweighed by the 
facts and circumstances.

7.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service Boards for Correction of Military/Naval 
Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence.  
Boards for Correction of Military/Naval Records 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)	AR20220007095


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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