IN THE CASE OF:  BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220009438 


APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. Additionally, he requests a personal appearance before the Board. 

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

•DD Form 149 (Application for Correction of Military Record)

•DD Form 293 (Application for the Review of Discharge)

•Self-Authored Letter

•DD Form 214 (Report of Separation from Active Duty)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code(USC), 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states it was an injustice to send an 18-year-old boy to the DisciplinaryBarracks at Fort Leavenworth, KS, for breaking in a wall locker and being drunk. Hedidn’t remember anything for 90 days. It was unjustified. It has been 43 years, and thiswas wrong.

3.The applicant enlisted in the Regular Army on 10 November 1976 for three years.His military occupational specialty was 31B (Field Communications Electrical EquipmentRepair).

4.The applicant accepted nonjudicial punishment (NJP) under Article 15 of the UniformCode of Military Justice (UCMJ) on 9 March 1977, for sleeping at his post as a sentryguard on or about 3 March 1977. His punishment consisted of forfeiture of $87.00 pay,extra duty, and restriction.

5.Court-martial charges were preferred against the applicant in April 1977 for violationsof the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with stealing awallet and U.S. currency of a value of $200.00, for a total value of 206.00, the property of another Soldier, on or about 2 April 1977. 

6.The applicant consulted with legal counsel on 19 April 1977 and was advised of thebasis for the contemplated trial by court-martial; the maximum permissible punishmentauthorized under the UCMJ; the possible effects of a UOTHC discharge; and theprocedures and rights that were available to him.

a.After consulting with legal counsel, the applicant voluntarily requested dischargeunder the provision of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

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

7.The applicant’s immediate commander recommended approval of his request fordischarge for the good of the service on 21 April 1977. The commander opined that theapplicant had been a constant leadership and disciplinary problem since he came to theunit. There exists no reasonable ground to believe that the applicant is, or was, at thetime of his misconduct, mentally defective, deranged, or abnormal and recommendedthe issuance of a discharge UOTHC.

8.A Report of Meant Status Evaluation, dated 26 April 1977 shows the applicant didnot have significant mental illness. He was mentally responsible, able to distinguish rightfrom wrong, able to adhere to the right, has the mental capacity to understand andparticipate in board proceedings and met retention standards.

9.The applicant’s chain of command recommended disapproval of his request fordischarge in lieu of court-martial. On 4 May 1977, the separation authority disapprovedthe applicant's request.

10.Before a special court-martial at Fort Leavenworth, KS on 15 June 1977, found theapplicant guilty of committing larceny by stealing a wallet and $200, from a fellowSoldier. The court sentenced him to separation from service with a bad conductdischarge (BCD), confinement at hard labor for three months, and forfeiture of $100.00pay for three months. The sentence was approved on 16 August 1977. The record oftrial was forwarded for appellate review.

11.Special Court Martial Order Number 260, dated 30 August 1977, shows theapplicant was restored to duty pending completion of appellate review.
12.The applicant received adverse counseling on 25 October 1977 for being late forduty and on 7 November 1977 for failure to repair.

13.The applicant accepted NJP under Article 15 of the UCMJ on 17 January 1978 forwithout authority absenting himself (AWOL) from his place of duty on or about15 January 1978. His punishment consisted extra duty

14.The U.S. Army Court of Military Review approved the findings of guilty and thesentence on 22 February 1978.

15.The applicant accepted NJP under Article 15 of the UCMJ on:

•23 February 1978, for AWOL from on or about 9 February 1978 to on or about13 February 1978

•14 March 1978, for AWOL from on or about 7 March 1978 to on or about 9 March1978



16.The applicant was confined by civil authorities on 14 March 1978, pendingcompletion of appellate review. He did not desire to seek legal counsel.

17.The U. S. Court of Military Appeals denied the applicant’s petition for a grant ofreview on 6 July 1978.

18.Special court-martial order number 26, issued by Headquarters, U. S. ArmyTraining Center, Fort Dix, NJ on 9 August 1978, noted the sentence was affirmed andordered the BCD to be duly executed.

19.The applicant was discharged on 9 August 1978. His DD Form 214 (Report ofSeparation from Active Duty) shows he was discharged under the provisions of ArmyRegulation 635-200, Chapter 11, with Separation Program Designator code JJD as aresult of court marital. His service was characterized as UOTHC. He completed 1 year,1 month, and 11 days of net active service, with 231 days of lost time. He was awardedor authorized two weapons qualification badges.

20.On 13 June 1985, the Army discharge Review Board determined the applicant wasproperly and equitable discharged and denied his request for a change in the characterand/or reason of his discharge.

21.The applicant provides a self-authored letter, which states he was 17 years oldwhen he went into the Army and eight months later, he was in Fort Leavenworth with a90-day sentence. After that he went to a Personnel Control Facility unit at Fort Dix at18 years of age. He went to a committee group, a lot happened to him there. He waspressured to sign out. They mailed him his discharge. His discharge was other thanhonorable. He is years old, and he needs a wrong to be made right. After advanced individual training a group went out to town to celebrate; had too much to drink and this happened by the grace of the God, he’s still alive. 

22.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, the ABCMR is not empowered to set aside a conviction. Rather,it is only empowered to change the severity of the sentence imposed in the court-martialprocess and then only if clemency is determined to be appropriate. Clemency is an actof mercy or instance of leniency to moderate the severity of the punishment imposed.

23.Published guidance to the Boards for Correction of Military/Navy Records(BCM/NR) clearly indicates that the guidance is not intended to interfere or impede onthe Board's statutory independence. The Board will determine the relative weight of theaction that led to the discharge and whether it supports relief or not. In reaching itsdetermination, the Board shall consider the applicant's petition, available records and/orsubmitted documents in support of the petition.

24.MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   

a.The applicant is applying to the ABCMR requesting an upgrade of his 9 August1978 under other than honorable conditions discharge.  He states: “It was an injustice to send an 18-year-old boy to the USDB {United Stated Disciplinary Barracks}, Leavenworth, KS, for breaking into a wall locker.” 

b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  His DD 214 shows he entered the regular Army on 10 November 1976 and was discharged on 9 August 1978 under the provisions in chapter 11 of AR 635-200, Personnel Separations -  Enlisted Personnel (15 August 1979): Dishonorable and Bad Conduct Discharge.  The separation program designator JJD denotes “Court-Martial (Other).”   
c.Special Court Martial Orders dated 16 August 1977 show the applicant was foundguilty of stealing a fellow Soldiers wallet on 2 April 1977 and had been sentenced to 90 days confinement with the sentence adjudged on 15 June 1977. 

d.Part II of the applicant’s Personnel Qualification Record (DA Form 2-1) shows 76days of imprisonment (15 June 1977 to 29 August 1977) and three brief periods of absences without leave; 15 January 1978, 9-12 February 1978, and 7-8 March 1978.  The applicant received article 15s for the latter 2 UCMJ violations. He was then confined by civil authorities (CCA) in Burlington, NJ, from 14 March 1978 to 1 August 1978. 

e.The applicant completed a pre-separation physical examination on 3 March 1978at which time he wrote  “I’m in good Health.”  No medical issues or conditions were identified and the applicant was cleared for separation. 

f.Review of the applicant’s records in JLV shows he receives care humanitarianemergency care as a non-service-connected Veteran.  It also shows he was a victim of military sexual trauma (MST). “Veteran shared that he experienced MST at the age of 18 when he returned to base after being court marshalled for 90 days in Leavenworth for destruction of a wall locker while intoxicated.  First Lieutenant coerced veteran into receiving oral sex, threatened to send him back to Leavenworth if he did not comply.  Subsequently harassed and threatened veteran for sexual favors. Veteran ultimately left military because of this, discharge was OTH, veteran has been fighting to overturn this decision.” “Veteran states that he spent decades suppressing memories of MST and would use alcohol to cope with flashbacks,  memories, and anxiety.” 

g.The applicant, a junior Soldier with less than five months in service, was guilty ofbreaking into a locker and stealing a wallet.  While such a crime would typically be addressed locally (Ft. Sill had a Personnel Control Facility established in 1971), the 18-year-old was incarcerated at the USDB in Ft. Leavenworth, KS.  He served his sentence and was returned to full duty in the Army on 30 August 1977. 

h.After being returned to service, he was subjected to multiple episodes of sexualassault and harassment by an officer.  The applicant then went absent without leave on three occasions in early 1978 for a total of 7 days.  He was then incarcerated for another 152 days with no judicial process found in the supporting documentation; and then discharged 11 months later for the relatively minor crime he was incarcerated for the year earlier. 

i.The 25 July 2018 memorandum - SUBJECT: Guidance to Military DischargeReview Boards and Boards for Correction of Military/ Naval Records Regarding Equity. Injustice, or Clemency Defeminations – is applicable in this case.  Paragraph 6a notes that in considering the granting of relief on the basis of equity, injustice, or clemency: “It is consistent with military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds.” 

j.Paragraph 6k notes that “Relief is generally more appropriate for nonviolentoffenses than for violent offenses.” 

k.It is the opinion of the Agency Medical Advisor that a discharge upgrade iswarranted. 

Kurta Questions: 

(1)A. Did the applicant have a condition or experience that may excuse ormitigate the discharge?  YES: Military Sexual Trauma (MST) 

(2)Did the condition exist or experience occur during military service? YES

(3)C. Does the condition or experience actually excuse or mitigate thedischarge? Partially: As military sexual trauma is associated with the onset of avoidant behaviors, his history of military sexual trauma fully mitigates his periods of absence without leave. However, the condition cannot mitigate the violation for which he was incarcerated as the MST occurred after he served his sentence. Given the applicant had paid for his misdeed 45 years ago and the history of MST, the medical advisor recommends the applicant’s discharge be upgraded to Honorable with narrative reason change to Secretarial Authority 

BOARD DISCUSSION: 

1.The Board determined the evidence of record was sufficient to render a fair andequitable decision. As a result, a personal appearance hearing is not necessary toserve the interest of equity and justice in this case.

2.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was not warranted. The Boardcarefully considered the applicant’s request, supporting documents, evidence in therecords, and published DoD guidance for liberal consideration of discharge upgraderequests. The Board considered the applicant's statement, the applicant's record ofservice, the frequency and nature of the applicant's misconduct and the reason for separation.  

a.The applicant trial by a court-martial was warranted by the gravity of the offensecharged (theft). His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. 

b.The Board considered the medical records, any VA documents provided by theapplicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding evidence of in-service mitigating factors to mitigate the AWO. However, the applicant was convicted of the charge of larceny, no AWOL. The Board did not find evidence that the larceny is mitigated by an in-service factor. The applicant provided insufficient 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 

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. 


Microsoft Office Signature Line...




REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords must be filed within 3 years after discovery of the alleged error or injustice. Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The ABCMR begins its consideration of each case with the presumption ofadministrative regularity, which is that what the Army did was correct.

a.The ABCMR is not an investigative body and decides cases based on theevidence 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 evidenceor 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 635-200 sets forth the basic authority for the separation of enlistedpersonnel. The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 11 provided that an enlisted person would be given a bad conductdischarge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 

4.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 

5.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-martial forum. However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to any other corrections, including changesin a discharge, which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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. 

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