IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009595 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge * to change his separation code APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 December 1986 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, at 65 years old, he has matured enough to know he was wrong. He is trying to accomplish his dream of buying a house. He needs a discharge upgrade to qualify for a Department of Veterans Affairs (VA) home loan. 3. The applicant enlisted in the U.S. Army Reserve on 30 April 1983 for a 6-year period. 4. He was ordered to active duty for training (ADT), on 24 May 1983, for completion of his initial entry training at Fort Leonard Wood, MO. 5. His service record contains multiple DA Forms 4187 (Personnel Action) which show the following changes in his duty status: * Present for Duty to Absent Without Leave (AWOL) on 4 July 1983 * AWOL to Dropped from the Rolls on 3 August 1983 * Dropped from the Rolls to Present for Duty on 6 March 1984 * Present for Duty to AWOL on 18 March 1984 * AWOL to Dropped from the Rolls on 20 March 1984 * Dropped from the Rolls to Confined by Civilian Authorities on 28 February 1985 * Confined by Civilian Authorities to AWOL on 3 March 1985 * AWOL to Dropped from the Rolls on 4 March 1985 6. Orders 093-78, issued by the U.S. Army Training Center, Fort Dix, NJ on 3 April 1985, shows he was reassigned to Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center, Fort Dix, NJ, effective 28 February 1985. 7. His service record contains four additional DA Forms 4187 which show the following changes in his duty status: * Dropped from the Rolls to Confined by Civilian Authorities on 1 May 1985 * Confined by Civilian Authorities to Present for Duty on 9 May 1985 * Present for Duty to Confined by Military Authorities on 9 May 1985 * Confined by Military Authorities to Present for Duty on 20 June 1985 8. Special Court-Martial Order Number 35.1, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, on 3 July 1985, shows: a. The applicant plead guilty and was found guilty of the following charges or specifications: * fraudulently enlist in the U.S. Army on 30 April 1983 * absent himself without authority on or about 4 July 1983 * absent himself without authority on or about 18 March 1984 b. The applicant was sentenced to be discharged from the service with a bad conduct discharge (BCD). The sentence was approved on 19 June 1985. 9. Special Court-Martial Order Number 37, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ on 12 July 1985, shows that the sentence was approved, and the BCD was ordered to be executed. 10. The applicant's service record does not contain, nor does he provide documentation that shows he voluntary elected a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of court-martial. However, his DD Form 214 shows he was discharged on 16 December 1986, in the grade of E-1. He was credited with 1 year, 7 months, and 19 days of net active service, with lost time from 4 July 1983 to 5 March 1984, 18 March 1984 to 28 February 1985 and 3 March 1985 to 8 May 1985. His DD Form 214 also shows the following entries: * Item 24 (Character of Service) – "Under Other Than Honorable, BCD (Special)" * Item 25 (Separation Authority) - Army Regulation 635-200, Chapter 10 * Item 26 (Separation Code) - KFS * Item 27 (Reenlistment Code) - RE 3-3B-3C * Item 28 (Narrative Reason for Separation) - for the good of the service - in lieu of court-martial 11. The applicant's record does not contain, nor does he provide any documents to support a behavioral health claim. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which 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. 13. Regulatory guidance pertaining to administrative separations states: Discharges under the provision 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. A Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 14. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 15. 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 a 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 in the U.S. Army Reserve on 30 April 1983. He was ordered to active duty for training (ADT) on 24 May 1983; 2) He was found to be AWOL from 4 July 1983- 6 March 1984. He again went AWOL multiple times between 18 March 1984-20 June 1985 after being confined by civilian authorities. He is eventually returned to Ft. Dix; 3) During a special court-martial hearing on 3 July 1985, the applicant plead guilty to the following charges: A) fraudulent enlistment in the U.S. Army; B) AWOL on 4 July 1983: C) AWOL 18 March 1984. The applicant was sentenced to be discharged from the service with a bad conduct discharge (BCD); 4) The applicant's service record does not contain, nor does he provide documentation that shows he voluntary elected a discharge under the provisions of a Chapter 10, in lieu of court-martial; 5) The applicant was discharged on 16 December 1986, Chapter 10, for the good of the service - in lieu of court-martial. His service was characterized as Under Other Than Honorable, BCD (Special). 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. The applicant asserts he has matured now at 65 years of age and now knows his misconduct was wrong. On his application, he noted other mental health conditions are related to his request, as mitigating factors in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any medical documentation. The applicant receives no service-connected disability. He did not provide any civilian medical documentation to support his assertion. 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 a mental health condition that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing the mental health conditions while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The applicant did go AWOL, 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. In addition there is no nexus between fraudulent enlistment and his reported mental health conditions. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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, the frequency and nature of the applicant's misconduct 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 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 3-7a states, an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. Paragraph 3-7b states 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. d. Section IV (Dishonorable and Bad Conduct Discharge), paragraph 3-11 states, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. e. Chapter 10 (Discharge for the Good of the Service) states a Soldier who has committed, an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening, authority. A Soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service. (1) The request for discharge for the good of the Service does not prevent or. suspend disciplinary proceedings. Whether proceedings will be held in abeyance pending final action on a discharge request per this chapter is a matter to be determined by the commander exercising general court-martial jurisdiction over the individual concerned. (2) If disciplinary proceedings are not held in abeyance; the general court-martial convening authority may approve the Soldier's request for discharge for the good of the Service after the Soldier has been tried. In this event, the officer who convened the court, in his or her action on the case, should not approve any punitive discharge adjudged. The officer should approve only so much of any adjudged sentence to confinement at hard labor or hard labor without confinement as has been served at the time of-the action. 3. Army Regulation 635-5-1 (Separation Program Designators [SPD]), dated 1 October 1982, and in effect at the time, provided instructions on the use of SPD codes, and the authorities and reasons therefor. a. Enlisted Soldiers voluntarily discharged under the provisions of Army Regulation 635-200, Chapter 10, for the Good of the Service - in lieu of trial by court-martial, receive SPD codes "KFS (JFS)." Additionally, "KFS" and "JFS" both received a reentry code of "RE-3." b. Enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, Section IV, as a result of court-martial, desertion, receive the SPD code "JJC." This SPD code received a reentry code of "RE-4." c. Enlisted Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, Section IV, as a result of court-martial, other, receive the SPD code "JJD." This SPD code received a reentry code of RE-3 or RE-4. Additional instructions state, if the SPD provides a choice of RE-3 or RE-4, assign RE-4 for a dishonorable or bad conduct discharge. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which 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. 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 and Boards 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 post-traumatic stress disorder (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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review 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. 7. Section 1556 of Title 10, USC, 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) AR20220009595 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1