IN THE CASE OF: 

		BOARD DATE: 28 March 2023

		DOCKET NUMBER: AR20220008187


APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his 
under other than honorable conditions (UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 293 (Application for the Review of Discharge)

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 AR20040005937 on 17 May 2005.

2.  The applicant states while on liberty he was given a substance that changed his 
mental to the extent that he was unable to follow through with simple orders. On his 
DD Form 293, the applicant notes mental health is related to his request, as a 
contributing and mitigating factor in the circumstances that resulted in his separation.

3.  The applicant enlisted in the Regular Army on 24 August 1973 for two years. His 
military occupational specialty was (MOS) 94B (Cook).

4.  The applicant accepted of nonjudicial punishment (NJP) under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ) at Fort Polk, LA on/for:

*	15 October 1973-making a false official statement on or about 15 October 1973; 
his punishment consisted of correctional custody for seven days
*	28 March 1974-failing to go to his appointed place of duty at the prescribed time 
on or about 5 March 1974, 7 March 1974, and 21 March 1974; his punishment 
consisted of reduction to private/E-1, forfeiture of $71.00 pay for one month 
(suspended), and extra duty; the suspension of his reduction and forfeiture were 
vacated on 4 April 1974
*	12 April 1974-failing to go to his appointed place of duty at the prescribed time on 
or about 6 April 1974, 7 April 1974, and 9 April 1974; his punishment consisted of 
extra duty and restriction
5.  A Notification of Community Drug and Alcohol Assistance Center (CDAAC) 
Counseling Appointments, dated 22 April 1974 and 29 April 1974, shows the applicant 
was scheduled for an assessment interview and regular counseling session. He was 
directed to report to CDAAC on 25 April 1974, 1 May 1974, and 2 May 74.

6.  A DD Form 458 (Charge Sheet), dated 8 May 1974, shows court-martial charges 
were preferred against the applicant for violations of the UCMJ for:

*	without authority, failing to go to his appointed place of duty at the prescribed 
time on or about: 24 April 1974, 25 April 1974, 26 April 1974 (twice), 28 April 
1974, 29 April 1974, 1 May 1974
*	disobeying lawful orders and being disrespectful to superior noncommissioned 
officers (NCOs) on or about: 24 April 1974, 25 April 1974 (three), 26 April 1974, 
and 2 May 1974
*	disobeying the lawful orders of superior commissioned officers on or about: 
25 April 1974, 1 May 1974, and 2 May 1974

7.  A Criminal Investigation Division Report of Investigation, dated 14 May 1974, shows 
on 11 May 1974 the applicant assaulted another Soldier by throwing him on the floor, 
choking him and biting his finger. A short time thereafter, the applicant again assaulted 
the Soldier by striking him on the head with a baseball bat, an instrument likely to cause 
grievous bodily harm. 

8.  DD Form 458 (Charge Sheet), dated 22 May 1974 additional court-martial charges 
were preferred against the applicant for violations of the UCMJ for:

*	failing to go to his appointed place of duty at the prescribed time on or about 8 
May 1974 and on or about 9 May 1974 
*	disobeying an order on or about 11 May 1974
*	committing assault on or about 11 May (twice)

9.  The applicant consulted with legal counsel on 29 May 1974 and was advised of the 
basis for the contemplated trial by court-martial, the effects of an undesirable discharge 
and of the rights available to him. Subsequent to receiving this legal counsel, the 
applicant voluntarily requested discharge for the good of the service, in lieu of trial by 
court-martial.

a.	In his request for discharge, the applicant acknowledged that he was guilty
of the charge(s) against him or of a lesser included offense(s) which also authorizes the 
imposition of a bad conduct or dishonorable discharge.

   b.	He also acknowledged that he understood that if his discharge request was 
approved, he could be deprived of many or all Army benefits, that he could be ineligible 
for many or all benefits administered by the Department of Veterans Affairs (VA), and 
that he could be deprived of his rights and benefits as a veteran under both Federal and 
State law. He further indicated that he understood he could encounter substantial 
prejudice in civilian life by reason of a UD.

     c.  He elected not to submit statements in his own behalf.

10.  The applicant’s chain of command recommended approval of his request for 
discharge and recommended his service be characterized as undesirable.

11.  The separation authority approved the applicant's request for discharge in lieu of 
trial by court-martial on 1 June 1974. He directed the applicant be reduced to the lowest 
enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate). 

12.  The applicant was discharged on 18 June 1974. His DD Form 214 (Report of 
Separation from Active Duty) shows he was discharged under the provisions of Army 
Regulation 635-200, paragraph 10, with Separation Program Designator (SPD) code 
"246" (for the good of the service, in lieu of trial by court martial). His characterization of 
service was UOTHC. He completed a total of 9 months and 25 days of net active 
service. He was awarded or authorized the National Defense Service Medal.

13. On 22 October 1982, the Army Discharge Review Board (ADRB) determined the 
applicant's discharge was proper and equitable and denied his request for upgrade.

14.  On 17 May 2005, the ABCMR considered the applicant's request for a discharge 
upgrade. The Board determined that the evidence presented did not demonstrate the 
existence of a probable error or injustice, and the overall merits of the case were 
insufficient as a basis for correction of the records. His request for relief was denied. 

15.  On 1 April 2011, the ABCMR responded to the applicant's request for 
reconsideration of his case and determined his request was not received within one 
year of the ABCMR’s original decision. As a result, his request for reconsideration was 
returned without further action.

16.  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.

	a.  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.

     b.  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.

17.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR for reconsideration of his previous 
request for an upgrade of his under other than honorable conditions (UOTHC) 
discharge. He contends he had mental health condition 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 24 August 1973; 2) The applicant accepted 
of nonjudicial punishments (NJP): A) on 15 October 1973 for making a false official 
statement; B) on 28 March 1974 for failing to go to his appointed place of duty at the 
prescribed time on 5 March 1974, 7 March 1974, and 21 March 1974; C) on 12 April 
1974 for failing to go to his appointed place of duty at the prescribed time on 6 April 
1974, 7 April 1974, and 9 April 1974; 3) On 8 May 1974, court-martial charges were 
preferred against the applicant for: A) failing to go to his appointed place of duty at the 
prescribed time on 24 April 1974, 25 April 1974, 26 April 1974 (twice), 28 April 1974, 29 
April 1974, 1 May 1974; B) disobeying lawful orders and being disrespectful to superior 
noncommissioned officers (NCOs) on 24 April 1974, 25 April 1974 (three), 26 April 
1974, and 2 May 1974; C) disobeying the lawful orders of superior commissioned 
officers on: 25 April 1974, 1 May 1974, and 2 May 1974; 4) On 22 May 1974, additional 
charges were preferred against the applicant for: A) failing to go to his appointed place 
of duty at the prescribed time on 8 May 1974 and on 9 May 1974; B) disobeying an 
order on 11 May 1974; C) committing assault on 11 May (twice); 5) The applicant was 
discharged on 18 June 1974, Chapter 10-for the good of the service, in lieu of trial by 
court martial. His characterization of service was UOTHC; 6) On 22 October 1982, the 
Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade; 7) 
On 17 May 2005, the ABCMR denied the applicant’s request for an upgrade.
    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 examined.

    d.  The applicant asserts “he was given a substance that changed his mental to the 
extent that he was unable to follow through with simple orders.” He also indicated on his 
application that a mental health condition was related to his request. A Notification of 
Community Drug and Alcohol Assistance Center (CDAAC) Counseling Appointments, 
dated 22 April 1974 and 29 April 1974, shows the applicant was scheduled for an 
assessment interview and regular counseling session. He was directed to report to 
CDAAC on 25 April 1974, 1 May 1974, and 2 May 74. There is no evidence the 
applicant was diagnosed with any behavioral health disorder while on active service. In 
addition, there was no evidence to suggest the applicant was under the influence of an 
illegal substance for several months, which would impact his ability to follow orders or 
engage in violent behavior.  A review of JLV provided evidence the applicant was 
diagnosed with depressive disorder NOS by a primary care provider one time in 2014, 
but there was insufficient evidence to suggest the applicant’s current behavioral health 
symptoms were related to his military service. The applicant receives no service-
connected disability. 

    e.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated her misconduct.

Kurta Questions

		(1)  Did the applicant have a condition or experience that may excuse or mitigate 
the discharge? Yes, the applicant contends he was experiencing a mental health 
condition that contributed to her misconduct. 

		(2)  Did the condition exist or experience occur during military service?  Yes, the 
applicant reports experiencing a mental health condition while on active service.

		(3)  Does the condition experience actually excuse or mitigate the discharge? 
Partially, there is insufficient evidence beyond self-report the applicant was experiencing 
a mental health condition while on active service. The applicant did engage in erratic 
and irritated behavior such as not reporting on time, not following orders, and being 
disrespectful, which can be a sequalae to some mental health conditions; but this is not 
sufficient to establish a history of a condition during active service. There is also no 
nexus between his reported mental health condition and his violent misconduct given 
that: 1) this type of misconduct is not part of the natural history or sequelae of his 
reported mental health condition; 2) his reported mental health condition does not affect 
one’s ability to distinguish right from wrong and act in accordance with the right. 
However, the applicant contends a mental health condition 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. The applicant was charged with commission of an 
offense (assault, failing to go to his appointed place of duty, and disobeying an order) 
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 reviewed and concurred with the medical advisor’s finding 
insufficient evidence beyond self-report the applicant was experiencing a mental health 
condition while on active service. There is also no nexus between his reported mental 
health condition and his violent 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 
AR20040005937 on 17 May 2005.

	 
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 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.

2.  Army Regulation635-200 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, a UOTHC discharge was normally considered appropriate.

3.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRB) and Service Boards for Correction of Military/Naval Records 
(BCM/NR) 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. 

4.  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. 

5.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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)	AR20220008187


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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