ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:

 BOARD DATE: 25 April 2023 
DOCKET NUMBER: AR20220008441

APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) be 
upgraded.

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

*	DD Form 149 (Application for Correction of Military Record)
   *	DD Form 214 (Certificate of Release or Discharge from Active Duty) 
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 used to complain about being bullied and harassed, which 
led to him being sent to the retraining brigade. He used to lose his mind and it screwed 
up his whole life. He feels he was let down and no one would believe him when he 
complained about the harassment. He wanted to make the Army a career.

3.	On the applicant's application, he indicates post-traumatic stress disorder (PTSD) 
and sexual assault/harassment as contributing and mitigating factors in the 
circumstances that resulted in his separation. However, he did not provide a diagnosis 
of PTSD, his statement refers to harassment that was not sexually related.

4.	The applicant enlisted in the Regular Army on 3 October 1979 for 3 years. He 
completed training with award of military occupational specialty 13B (Cannon 
Crewman).

5.	The applicant accepted nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:




*	4 February 1980, for willfully disobeying a lawful verbal order from a 
noncommissioned officer (NCO), on or about 3 February 1980
*	18 March 1980, for without authority leaving his place of duty and disobeying a 
lawful verbal order from an NCO, on or about 13 March 1980
*	22 May 1980, for willfully disobeying a lawful order and use of provoking words 
towards an NCO, on or about 12 May 1980
*	17 June 1980, for willfully disobeying a Training Rules and Regulation order by 
failing to be in his assigned bunk, on or about 14 June 1980
*	24 June 1980, for willfully disobeying a Standard Operating Procedure (SOP) by 
not being in his bunk, on or about 23 June 1980
*	15 July 1980, for being disrespectful in language toward a NCO and disobeying a 
lawful order, on or about 9 July 1980
*	16 July 1980, for willfully disobeying a SOP order by not being in his bunk, on or 
about 12 July 1980

6.	A Bar to reenlistment was imposed on 20 May 1980 for violation of Article 86 
(absence without leave) and 92 (disobeying a lawful order). The form notes the 
applicant received a Letter of Reprimand on 7 May 1980 for disrespect towards a NCO 
and reports eight negative counseling statements for various infractions between
14 January and 7 May 1980.

7.	Summary Court-Martial Order Number 8A, issued by Headquarters, 3rd Battalion, 
6th Field Artillery Fort Riley, KS on 6 June 1980, shows the applicant was found guilty 
of:

*	breaching the restraints imposed by correctional custody and walking beyond the 
specified limits, on or about 1 June 1980
*	willfully disobeying a lawful order from an NCO, on or about 1 June 1980,
*	using disrespectful language toward an NCO, on or about 1 June 1980; he was 
sentenced to seven days confinement at hard labor

8.	The applicant's status was changed to civil confinement facility on 2 August 1980. He 
was apprehended and held by the Junction City police department for solicitation.

9.	The applicant’s record is void of a separation packet. However, his DD Form 214 
shows he was discharged on 18 August 1980, under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) for 
frequent involvement in incidents of a discreditable nature with civil or military 
authorities. He was discharged in the grade of E-1 and his service was characterized as 
UOTHC. He was credited with 10 months and 11 days of net active service with 5 days 
of lost time. His awards are listed as the Sharpshooter Qualification Badge with Rifle 
and Grenade bars.




10.	In reaching its determination, the Board can consider the applicant’s petition, his 
arguments and assertions, and his service record in accordance with the published 
equity, injustice, or clemency guidance.

11.	MEDICAL REVIEW:

  a.	The applicant is applying to the ABCMR requesting upgrade of his under other 
than honorable conditions (UOTHC) discharge. He contends he had PTSD and 
experienced harassment which 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 in the Regular Army on 3 October 1979; 2) The applicant's status was 
changed to civil confinement facility on 2 August 1980. He was apprehended and held 
by the civil police department for solicitation; 3) The applicant’s available record is void 
of his separation processing documents. However, he was discharged on 18 August 
1980, 14-33b(1) for frequent involvement in incidents of a discreditable nature with civil 
or military authorities. His service was characterized as UOTHC.
  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.	On the applicant's application, PTSD and sexual assault/harassment were 
indicated as contributing and mitigating factors in the circumstances that resulted in his 
separation. However, he did not provide a diagnosis of PTSD, and his statement refers 
to harassment that was not sexually related. There was insufficient information available 
that the applicant had ever been diagnosed with a mental health disorder while on 
active service. A review of JLV was void of any medical or mental health documentation 
for the applicant. The applicant receives no service-connected disability. The applicant 
did not provide any additional civilian medical documentation to support his assertion of 
experiencing a mental health condition.

  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 his 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 harassment and PTSD 
which contributed to his misconduct.

      (2)	Did the condition exist or experience occur during military service? Yes, the 
applicant reports experiencing harassment and PTSD while on active service.
      



      (3)	Does the condition/experience actually excuse or mitigate the discharge? No, 
there is insufficient evidence to support the applicant had condition or experience that 
mitigated his misconduct beyond self-report. In addition, there is no nexus between his 
reported mental health condition and experience and solicitation given that: 1) this 
misconduct is not part of the natural history or sequelae of his reported mental health 
condition and experience; 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 mental 
health and experience resulted in his misconduct, and per the Liberal Consideration 
Policy, his contention is sufficient for consideration.

BOARD DISCUSSION:

After reviewing the application, the Board found that relief was not warranted. 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’s separation packet is not available for review. However, other 
evidence shows he was discharged under chapter 14 of AR 625-200 for frequent 
involvement in incidents of a discreditable nature with civil or military authorities with his 
service was characterized as under other than honorable conditions. The Board 
considered the medical records, any VA documents provided, and the review and 
conclusions of the advising official. The Board concurred with the medical advisory 
official’s finding insufficient evidence that the applicant had condition or experience that 
mitigated his misconduct beyond self-report. The applicant provides no evidence of post 
discharge achievements or character reference letters 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
XX:
XX:
XX:
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.

4/25/2023




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 the Army Review Boards Agency (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 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR). 
Paragraph 2-9 states 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.

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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

   c.	Chapter 14 (Separation for Misconduct) establishes policy and prescribes 
procedures for separating personnel for misconduct because of minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, and absence without leave.

   d.	Paragraph 14–33b (A pattern of misconduct) stated a Soldier may be discharged 
for pattern of misconduct consisting of one of the following:
   



(1)	Discreditable involvement with civil or military authorities.

      (2)	Discreditable conduct and conduct prejudicial to good order and discipline 
including conduct violating the accepted standards of personal conduct found in the 
UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the 
Army.

5.	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/NR) 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//