IN THE CASE OF: 

		BOARD DATE: 2 May 2023

		DOCKET NUMBER: AR20220009382


APPLICANT REQUESTS: Reconsideration of his previous requests for upgrade of his 
undesirable discharge.

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

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Letter
*	Office of the Staff Judge Advocate Letter
*	University Letter 
*	Department of Veterans Affairs (VA) Letter

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 Dockets Number AR20140007166 on 6 May 2014 and 
AR20140008782 on 26 January 2015, respectively.

2.  As a new argument, the applicant states he joined to serve his country, ready for 
Vietnam. He failed both his father who was a sergeant first class/E-7 on the Hornet and 
his brothers. He wanted to return this time as a good Soldier now dedicated to the 
service. He was recommended for a general discharge and given an undesirable. Then 
later, for reasons only the Army knew a dishonorable. He was hurt and suffered mental 
and emotional damage. He had no choice in the Army’s new decision still he believed 
he deserved an honorable discharge. He didn’t join to defraud the Army. He rejoined to 
do better. It was important to him and (his) family.

3.  The applicant enlisted in the Regular Army on 9 October 1970 for three years. His 
DD Form 4 (Enlistment Contract) shows in item 11 (Enlisted/Reenlisted/Induction) "1st 
Enlist-number 1" is marked.

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

*	31 October 1970 - threating with contempt his superior noncommissioned officer 
(NCO) on or about 31 October 1970; his punishment consisted of restriction, 
extra duty, forfeiture of $29.00 pay (suspended)
*	19 February 1971 - without authority absenting himself from his unit on or about 
16 February 1971 to 19 February 1971; his punishment consisted of oral 
reprimand, seven days correctional custody, and forfeiture of $30.00 pay
*	16 March 1971 - absence without leave (AWOL) on or about 24 February 1971 to 
3 March 1971; his punishment consisted of forfeiture of $50.00 pay for two 
months and 30 days correctional custody 

5.  The applicant was reported as AWOL from on or about 5 April 1971 to on or about 
2 May 1971.

6.  Before a special court-martial at Fort Lewis, WA on 26 May 1971 the applicant was 
found guilty of AWOL from on or about 5 April 1971 through on or about 2 May 1971. 
The court sentenced him to confinement at hard labor for three months, forfeiture of 
$75.00 pay for three months, and reduction to private/E-1. The sentence was adjudged 
on 7 June 1971.

7.  The applicant's immediate commander requested the applicant be eliminated from 
the service on 28 June 1971, under the provisions of Army Regulation (AR) 635-212 
(Personnel Separations-Discharge-Unfitness and Unsuitability), for unsuitability. His 
justification was that the applicant had been involved in many disruptive situations. He 
demonstrated negativism towards anyone in a position of authority. He had a problem 
with social adjustment in that he invariably alienated other trainees. The applicant would 
not make a satisfactory Soldier therefore he recommended that he be eliminated from 
the military service for unsuitability and be given a General Discharge Certificate.

8.  A Certificate of Psychiatric Evaluation shows the applicant was examined on 1 July 
1971 and further medical evaluation was recommended. He demonstrated marked 
difficulty with authority, provocativeness, marked instability, and poor judgment. He 
seemed unsuitable for military service. The examining psychiatrist noted he seemed to 
have a problem that manifested itself as a character behavior disorder.

9.  The applicant consulted with counsel on 9 July 1971 and acknowledged that he had 
been advised of the basis for the contemplated action to separate him under the 
provisions of AR 635-212, for unsuitability, and its effects; the rights available to him; 
and the effect of any action taken by him in waiving his rights.

	a.  He elected not to provide a statement in his own behalf.

	b.  He waived consideration of his case and a personal appearance before by a 
board of officers.
	c.  He acknowledged he may encounter substantial prejudice in civilian life if he 
received a general discharge under honorable conditions.

10.  The applicant's commander formally recommended his separation on 12 July 1971, 
under the provisions of Army Regulation 635-212, for unsuitability. The applicant’s chain 
of commander recommended approval.

11.  The applicant was discharged on 16 July 1971. His DD Form 214 (Report of 
Transfer or Discharge) shows he was discharged under the provisions of AR 635-212, 
with Separation Program Number (SPN) 264 (unsuitability – Character and Behavior 
Disorder). His characterization of service was under honorable conditions (general). He 
completed 6 months and 8 days of net active service, with four periods of lost time. He 
was awarded or authorized the National Defense Service Medal.

12.  The applicant again enlisted in the Regular Army on 31 July 1972 for three years. 
His DD Form 4 shows in item 11 – "1st Enlist-number 1" is marked. The applicant swore 
or affirmed that the foregoing statements had been read by him, that his statements had 
been correctly recorded and were true in all respects and that he fully understood the 
conditions under which he was enlisting and signed the form.

13.  On 10 August 1972, the applicant’s immediate commander requested a psychiatric 
and physical examination as required by AR 635-206 (Personnel Separations-
Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) 
prior to submission of a recommendation that the applicant be administratively 
separated from the service.

14.  A Report of Metal Status Evaluation, dated 10 August 1972, shows the applicant 
had no significant mental illness and was mentally responsible, able to distinguish right 
from wrong, able to adhere to the right, had the mental capacity to understand and 
participate in board proceedings and met retention standards. 

15.  A Consultation Report, dated 10 September 1972, indicates the applicant was 
pending discharge on fraudulent enlistment. It states, the applicant was an immature, 
rebellious individual with poor judgement and insight and retention or separation should 
be left to the discretion of command. He was flagged pending investigation for possible 
fraudulent entry for prior service. 

16.  The applicant's commander notified him on 6 September 1972 of his intent to 
discharge the applicant under the provisions of AR 635-206, for fraudulent enlistment, 
specifically for concealing information concerning prior military service. He was advised 
of the rights available to him.

17.  The applicant consulted with counsel on 6 September 1972 and acknowledged that 
he had been advised of the basis for the contemplated action to separate him under the 
provisions of AR 635-206, for fraudulent entry. He elected not to provide a statement in 
his own behalf. He elected to have his case considered by a board officers and personal 
appearance.

18.  The applicant's commander formally recommended his separation on 6 September 
1972, under the provisions of AR 635-206. He noted the applicant had prior service and 
fraudulently entered service on 31 July 1972.

19.  The applicant accepted NJP under Article 15 of the UCMJ on 11 September 1972, 
for without authority failing to go at the time prescribed to his appointed place of duty on 
or about 7 September 1972. His punishment consisted of forfeiture of $67.00 pay and 
extra duty. 

20.  A board of officers convened on 3 October 1972. The Board determined 
rehabilitation was not deemed appropriate and recommended the applicant be 
discharged from the service because of misconduct by reason of fraudulent enlistment, 
with the issuance of an Undesirable Discharge Certificate.

21.  An Office of the Staff Judge Advocate letter, dated 10 October 1972, requests the 
applicant a General Discharge Certificate, or in the alternative, his discharge certificate 
be suspended for six months.

22.  The convening authority approved the findings and recommendation of the Board 
on 24 October 1972. He directed the applicant's discharge under the provisions of AR 
635-206, because of fraudulent entry and directed he be furnished a DD Form 258A 
(Undesirable Discharge Certificate). 

23.  Accordingly, the applicant was discharged on 1 November 1972. His DD Form 214 
shows he was discharged under the provisions of AR 635-206, with SPN 280 
(fraudulent entry). His characterization of service was UOTHC. He was not credited with 
service for this period.

24.  On 27 March 1973, the Army Discharge Review Board determined the applicant 
was properly discharged and denied his request for a change in the type and nature of 
his discharge. 

25.  On 6 May 2014, the ABCMR notified the applicant that his National Archives 
Records Administration (NARA) records were not available. Therefore, based on the 
unavailability of supporting documents, the ABCMR closed his case without further 
action.

26.  On 26 January 2015, the ABCMR notified the applicant that his request for 
reconsideration was not received within one year of the ABCMR’s original decision and 
returned his case without further action.

27.  The applicant provides:

     a.  A Self-Authored letter that states he received credits from Western Michigan 
University. He is an assistant boy scout leader, cub scout leader, special minister. He 
wanted to show the Army what his dad and brothers did. He was cut short by the army 
probably because he was hurt in his first time suffering mental and emotional damage. 
Though he could have done more in the service of his country if allowed to serve as he 
proved by what he accomplished in his life. He could not hope to be a hero like his dad 
with many medals, or even his brothers Vietnam service medals. At 70 years old his 
service discharge is still important even $172.00 a month. He will be buried at death in a 
national cemetery with an honorable discharge and one he never earned.

     b.  An Office of the Staff Judge Advocate letter, for proceedings under Army 
Regulation 635-206.

     c.  University letter, dated 27 October 2003 reported that all requirements had been 
completed and the applicant’s degree would be posted at the end of the current 
semester/session.

     d.  A VA letter, dated 20 May 2021 notified the applicant that he was eligible for 
burial in a VA national cemetery.

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

29.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting a reconsideration of his previous 
applications to upgrade the characterization of his service from Dishonorable Discharge 
to an Honorable Discharge.
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a summary of information pertinent to this 
advisory: 
*	Applicant enlisted into the RA on 9 October 1970.
*	Applicant accepted nonjudicial punishment (NJP) under Article 15 on 31 October 
1970 for threatening with contempt his superior NCO, 19 February 1971 for 
absenting himself from his unit 16 February to 19 February 1971, and 16 March 
1971 AWOL on 24 February to 3 March 1971. During a special court martial 26 
May 1971, he was found guilty of AWOL from 5 April 1971 to 2 May 1971. He 
was sentenced to confinement at hard labor for 3 months, as well as forfeiture of 
pay for 3 months and reduction in rank. The sentence was adjudged 7 June 
1971. 
*	Applicant’s immediate command recommended he be eliminated from service 
under provisions of AR 635-212 (Personnel Separations-Discharge-Unfitness 
and Unsuitability). 
*	Applicant was discharged on 16 July 1971 under the provisions of AR 635-212, 
with Separation Program Number (SPN) 264 (unsuitability). His characterization 
of service was under honorable conditions (general). 
*	Applicant again enlisted in the Regular Army on 31 July 1972. His DD Form 4 
shows in item 11 – "1st Enlist-number 1." Within weeks he was recommended for 
an evaluation as part of separation proceedings for fraudulent enlistment. During 
the separation process he also accepted NJP under Article 15 on 11 September 
1972 for failure to report to his place of duty. A board of officers convened 3 
October 1972. It was recommended that he be discharged from the service for 
misconduct by reason of fraudulent enlistment, with an issuance of an 
Undesirable Discharge Certificate. 
*	Applicant was discharged 1 November 1972 under the provisions of AR 635-206, 
with SPN 280 (fraudulent entry). His characterization of service was UOTHC. 
*	Applicant has made three attempts to amend his records (properly 
discharged/denied upgrade, supporting documents were unavailable, and 
reconsideration not received within one year of original decision, respectively). 
See ROP and supporting documents for further information. 

    c.  Review of Available Records Including Medical:
    d.  The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor 
reviewed this case. Documentation reviewed included the applicant’s completed DD 
Form 149, his ABCMR Record of Proceedings (ROP), previous ABCMR 
submission/ruling information, self-authored letter, Office of the Staff Judge Advocate 
Letter, Western Michigan Letter, and Department of Veterans Affairs (VA) letter, as well 
as documents from his service record and separation. The VA electronic medical record 
and DoD health record were reviewed through Joint Longitudinal View (JLV) and 
AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of 
consideration. 
    e.  This applicant was enlisted in the Regular Army twice, and this opine will be 
primarily focused on this second (fraudulent) enlistment, as that is the discharge 
characterization he is petitioning to change.  This is the Veteran’s fourth attempt at 
amending his record. A previous application included him stating he had been assaulted 
while in the service. No additional evidence regarding this was listed in the documents 
available, and it is unclear when it occurred. Though not mentioned in this current 
application, the advisor will consider this information.  
    f.  During his initial enlistment separation proceedings, the applicant was seen for a 
psychiatric evaluation 1 July 1971. He “demonstrated marked difficulty with authority, 
provocativeness, marked instability, and poor judgment” and appeared unsuitable for 
military service. The examining psychiatrist noted he seemed to have a problem that 
manifested itself as a “character-behavior disorder.” During his second enlistment he 
was seen for a psychiatric evaluation prior to submission of a recommendation that the 
applicant be administratively separated from the service for fraudulent enlistment. A 
Report of Mental Status dated 10 August 1972 shows no mental illness and that he was 
mentally responsible, was able to distinguish right from wrong, was able to adhere to 
the right, and was mentally fit/capable of participating in the board proceedings. He was 
overall found fit for duty. In the consultation report dated 10 September 1972, seemingly 
after getting into a fight or fights, he was described as appearing “defiant and 
suspicious,” his mood was “one of apprehension with appropriate affect. At times his 
thoughts were not related in a logical orderly fashion.” He was overall described as an 
“immature, rebellious individual with poor judgment and insight.” 
    g.  The applicant had a C&P completed 1 February 2012, which gave a detailed 
social and psychiatric history. He was diagnosed with Personality Disorder Not 
Otherwise Specified (Paranoid and Schizotypal Traits) and at that time it was 
determined “it is less than likely as not that veteran's military discharge diagnosis of a 
character-behavior disorder was an early manifestation of his current schizophrenia, as 
current examination found veteran's condition to be more consistent with a personality 
disorder (i.e., character disorder) than schizophrenia.” In summary, his condition was 
not service connected. The examiner believed his significant mental health concerns 
were evident prior to service, given he had psychiatric hospitalizations spanning most of 
his childhood, significant family history of severe mental illness, and likely severe 
attachment issues stemming from an abusive childhood. The conceptualization of his 
difficulties during his two periods of service appears consistent over time, to include 
during his C&P exam, which covered a mental health history spanning before and after 
his service.
    h.  The applicant has been engaged in care at the VA intermittently starting in 2014. 
He had a break in care from 2017 to 2021 (with the VA) though returned in 2021 and 
was seen for several sessions. During this episode of care, he was diagnosed with 
Bipolar Disorder, with his current episode being hypomanic. The applicant did not 
provide any additional civilian medical records.
    i.  Based on the available information, it is the opinion of the Agency Behavioral 
Health Advisor that there is insufficient evidence to support that the applicant 
experienced a mental health condition that was service connected and there is 
insufficient evidence to support the applicant had a condition or experience that 
mitigated his misconduct. 
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 he experienced 
“mental and emotional damage” during his first enlistment. During a previous Army 
Discharge Review Board, it appears the applicant also attested that he was assaulted 
during his time in service. This was not described during his current case. 

		(2)  Did the condition exist or experience occur during military service? Yes, the 
applicant asserts that he experienced “mental and emotional damage” during his first 
enlistment. Also, he previously asserted he was assaulted. 

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
No: The applicant asserts “mental and emotional damage” during his first enlistment, 
and previously asserted a physical assault. This assertion alone is worthy of 
consideration by the Board. However, a psychiatric evaluation from his first enlistment 
noted a “character behavior disorder.” During his second, fraudulent, enlistment he was 
found fit for duty with no identifiable diagnosis He has participated in a C&P through the 
VA, was diagnosed with a Personality Disorder NOS, and it was not found to be service 
connected. There is insufficient evidence to suggest he had a mitigating diagnosis or 
experience during his second, fraudulent, enlistment. At the time of separation, he was 
found to know the difference between right and wrong and was able to adhere to the 
right. As suggested in the Kurta memo, the premeditated misconduct outweighs relief 
offered under Liberal Consideration guidance.

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 was discharged for misconduct - fraudulent entry with an 
under other than honorable conditions characterization of service. 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 advising 
official finding insufficient evidence to suggest the applicant had a mitigating diagnosis 
or experience during his second, fraudulent enlistment. 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

: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 Dockets Number 
AR20140007166 on 6 May 2014 and AR20140008782 on 26 January 2015.

	 
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.  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 635-206 (Personnel Separations-Discharge-Misconduct 
(Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), in effect at that time, 
set forth the basic authority for the separation of enlisted personnel due to misconduct 
(fraudulent entry, conviction by civil court, and absence without leave or desertion). 
Paragraph 20-Concealment of prior service of the regulation provided for action upon 
discovery of concealment by an individual of his prior separation from any of the Armed 
Forces of the United States under conditions barring reentry into the Army, the 
individual will be considered for discharge under the provisions of this regulation. 
Complete verification of the facts concerning the alleged concealment will be made prior 
to initiating elimination action, including a thorough examination of pertinent records 
prepared at time of, or prior to, entry into the Army.

4.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel. This 
regulation provided that:

	a.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law. The honorable characterization was appropriate when the 
quality of the member's service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.

	b.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to have warranted an honorable discharge. 

5.  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. 

6.  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. 

7.  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)	AR20220009382


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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