IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009378 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) characterization of service * a personal appearance before the Board 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, in effect, he was mistreated while on active duty. He was not granted extra leave when his mother had a stroke. He was told he needed to return immediately. He went absent without leave (AWOL) for over a month to take care of her. His mother was the most important person to him. He made the decision to stay and care for her. His DD Form 149, notes post-traumatic stress disorder (PTSD) is related to his request. 3. The applicant was released from active duty following the completion of initial active duty for training (IADT) on 18 April 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded Military Occupational Specialty 19D (Cavalry Scout) and was credited with 3 months and 5 days of net active service. 4. A National Guard Bureau (NGB) Form 22 (NGB - Report of Separation and Record of Service) shows he was honorably discharged from the Ohio Army National Guard on 8 April 1987, for the purpose of enlistment. He was credited with 2 years, 1 month and 6 days of net service this period. 5. The applicant enlisted in the Regular Army on 24 April 1987 for a 3-year period. The highest rank he obtained was private first class (PFC)/E-3. 6. The applicant's record contains a medical exam for a test for legal blood alcohol content (BAC), dated 11 November 1987, and a corresponding DA Form 2496 (Disposition Form) and lab results. The exam shows the applicant consented to a blood alcohol test which resulted in .0926 BAC. 7. The applicant accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, on 12 November 1987 for operating a vehicle while under the influence of alcohol, on or about 11 November 1987. His punishment included reduction to private/E-1, extra duty, and restriction for 13 days. 8. His service record includes a Letter of Administrative Reprimand for driving under the influence of alcohol. a. He elected to submit a rebuttal in appeal of the reprimand. (1) The applicant stated, in effect, on 9 October 1987, he purchased a new car. He was also expecting to be promoted the same day. He did not get promoted and was very upset. On 10 October 1987, he got off charge of quarters (CQ), slept, ate, and went for a drive. Still upset about the promotion, he spent the day drinking heavily at a friend's house. The following day, 11 October 1987, he drank one beer in the morning and one in the afternoon. He did not eat anything all day. He did not feel tired or intoxicated. He drove to the mall. On his way back to his friend's house, he was stopped by the police for touching the yellow line with his tires. He was given an Article 15. (2) He was very upset about not being promoted. He served two years in the National Guard and 9 months in the Army, and other privates were promoted before he was with less than one year in the service. He learned his lesson, though he was treated unfairly. He was not thinking. His BAC was high because of the alcohol he drank the day before the action occurred. He requested the letter of reprimand not be placed in his permanent record. b. The Letter of Administrative Reprimand was endorsed by all levels of his chain of command and entered into his military personnel record as a permanent document. 9. Two DA Forms 4187 (Personnel Action) show the following changes in his duty status: * Present for Duty to AWOL on 6 July 1988 * AWOL to Dropped from Rolls on 5 August 1988 10. He was apprehended by civilian authorities on 21 September 1988 and returned to military control on that same date. 11. A DA Form 4187 shows his duty status changed from Dropped from Rolls to Attached/Present for Duty on 21 September 1988 12. A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him on 5 October 1988, for being AWOL from on or about 6 July 1988 to on or about 21 September 1988. 13. The applicant consulted with legal counsel on or about 5 October 1988. 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, 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 (Active Duty Enlisted Administrative Separations), 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 11 October 1988. 15. The separation authority approved the recommended discharge on 14 October 1988, he directed the applicant be issued an UOTHC discharge. 16. The applicant's DD Form 214 shows he was discharged on 18 November 1988, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court- martial, with an UOTHC characterization of service. He was credited with 1 year, 4 months, and 10 days of net active service with lost time from 6 July 1988 to 20 September 1988. 17. The applicant's record does not contain, nor does he provide documentation pertaining to his claim of PTSD. 18. Discharges under the provisions of Army Regulation 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. An UOTHC character of service is normally considered appropriate. 19. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 20. Based on the applicant's contention of PTSD, the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. 21. MEDICAL REVIEW: a. The applicant requests an upgrade his characterization of service from under other than honorable conditions (UOTHC) characterization of service. He contends his misconduct was related to PTSD. 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 April; 2) He accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice, on 12 November 1987 for operating a vehicle while under the influence of alcohol, on or about 11 November 1987; 3) A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him on 5 October 1988, for being AWOL from on or about 6 July 1988 to on or about 21 September 1988; 4) The applicant consulted with legal counsel on or about 5 October 1988. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10; 5) He was discharged on 18 November 1988, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. No military BH-related documents were provided for review. A review of the VA electronic medical record, JLV, was void of any BH-related treatment history for the applicant and he does not have a service- connected disability. No civilian BH-related records were provided for review. d. The applicant is seeking upgrade of his UOTHC discharge and asserts his misconduct was related to PTSD. A review of the records was void of any BH-related diagnosis or treatment history, for the applicant, during or post-service, and he provided no documentation supporting his contention of PTSD. Given the above, there is no evidence the applicant’s misconduct was related to PTSD and therefore his misconduct is not mitigated by PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience during his time in service. However, he contends his misconduct was associated with PTSD, and per Liberal Consideration policy, his assertion is sufficient to warrant the Board’s consideration. 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 contends his misconduct was associated PTSD (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant is seeking upgrade of his UOTHC discharge and asserts his misconduct was related to PTSD. A review of the records was void of any BH-related diagnosis or treatment history, for the applicant, during or post-service, and he provided no documentation supporting his contention of PTSD. Given the above, there is no evidence the applicant’s misconduct was related to PTSD and therefore his misconduct is not mitigated by PTSD. 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. After reviewing the application and all supporting documents, 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, and the reason for separation. 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. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, 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. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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, 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. 6. Section 1556 of Title 10, U.S. 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) AR20220009378 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1