IN THE CASE OF: 

		BOARD DATE: 6 December 2023

		DOCKET NUMBER: AR20220010662


APPLICANT REQUESTS:  reconsideration of his previous request to upgrade his under 
other than honorable conditions discharge to an honorable discharge.  

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

*	DD Form 149 (Application for Correction of Military Record)
*	Personal Statement
*	DD Form 214 (Report of Separation from Active Duty) 
*	Letter to the Department of Veterans Affairs (VA) in relation to post-traumatic 
stress disorder (PTSD) and anxiety
*	VA Progress Notes and Problem Lists

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 Docket Number AC90-07658 on 23 January 1991.

2.  The applicant states he was told he would receive an honorable discharge. He could 
not read; he had 3 years of education. The Recruiting sergeant helped him pass his 
GED by giving him the answers. He also took the test and went into the military. He did 
not do what they said he did, in the court-martial and he does not know why they sent 
him for retraining. He had seen two men throw rocks at the car; but he left. When asked, 
he told them what he saw. Then, everything was turned around and he was being 
charged. He could not read the charges against him, and no one would read them to 
him. In the end, he did go to retraining and fees/monies were deducted from his pay. He 
paid the debt that he believes he did not owe. He was told to sign the papers. He 
trusted them because they were officers.  

3.  Review of the applicant’s available service records shows:

	a.  He enlisted in the Regular Army on 5 March 1975. He completed raining and was 
awarded military occupational specialty 51A, Construction and Utilities Worker.

	b.  On 26 October 1976, at Fort Leonard Wood, MO, he accepted nonjudicial 
punishment under Article 15 for failing to go at the time prescribed to his appointed 
place of duty. His punishment included a suspended reduction to private two (PV2)/E-2 
to private (PV1)/E-1. 

	c.  On 8 December 1976, before a Special Court-Martial convened at Fort Leonard 
Wood, MO, the applicant convicted by a special court-martial of:

		(1)  Charge I, one specification of willfully and wrongfully damage an 
automobile's vinyl roof and driver's side window by smashing the driver's side window 
and vinyl roof; the property of Mr.; the amount of said damage being in the sum of about 
$218.00,

		(2)  Charge II, one specification of stealing one (1) tool box, of a value of about 
$25.00; one (1) CB radio converter, of a value of about $30 00,·one (1) FM radio 
converter, of a value of about $30,00, one (1) clothes hanger bar, of a value of about 
$4.00, one (1) nylon insulated blanket, of a value of about $6.00, and one (1) black 
leather case containing eyeglasses and numerous papers, of a value of about $10.00, a 
total value of about $105.00; the property of Mr. .

	d.  The court sentenced him to confinement at hard labor for 2 months, forfeiture of 
$200 pay per month for 2 months, and a bad conduct discharge. 

	e.  On 30 December 1976, the convening authority approve the sentence and 
ordered it executed, but the execution of that portion of the sentence adjudging bad 
conduct discharge is suspended until 30 June 1977, at which time, unless the 
suspension is sooner vacated, the bad conduct discharge shall be remitted without 
further action. The service of the sentence to confinement at hard for 2 months was 
deferred on 8 December 1976 and deferment is rescinded effective this date. The 
forfeiture shall apply to pay becoming due on and after the date of this action. The 
record of trial is forwarded to The Judge Advocate General of the Army for review by a 
Court of Military Review.  The United States Army Retraining Brigade, Fort Riley, KS is 
designated as the place of confinement; and the confinement will be served therein or 
elsewhere as competent authority may direct.

	f.  Shortly after arriving at the Retraining Brigade, he was evaluated by a social 
worker. It was stated that since being assigned to the Retraining Brigade he had 
received seven negative observation -reports. It was also stated he had had a horrible 
childhood with limited education, and he was immature and susceptible to peer 
pressure. The social worker opine that the applicant was inept for military service and 
that this inaptitude was chronic and severe. It was recommended that he be separated 
from the service as unsuitable due to inaptitude.

	g.  Although not available for review, other evidence shows the applicant was 
advised by counsel of the significance of his suspended bad conduct discharge and the 
possibility of receiving an administrative discharge under other than honorable 
conditions. 

	h.  After being advised of all the rights available to him, he submitted a request for 
discharge for the good of the service under the provisions of chapter 10, Army 
Regulation (AR) 635-200 (Personnel Separations). 

	i.  The separation authority approved his request for discharge and directed that he 
be issued a discharge certificate under other than honorable conditions. The applicant 
was discharged on 14 April 1977.

	j.  The DD Form 214 (Report of Separation and Record of service) he was issued 
shows he was discharged under the provisions of chapter 10 of AR 635-200, in lieu of 
trial by court-martial, with an under other than honorable characterization of service 
(Separation Code JFS, and Reentry Code 3B). He completed 1 year, 11 months, and 
17 days of active service and he had 53 days of lost time. 

	k.  On 27 March 1979, the Army Discharge Review Board (ADRB) reviewed his 
discharge and found it prior/not in error. The ADRB denied his request to upgrade the 
discharge. 

	l.  On 23 January 1991, the ABCMR also denied his request for an upgrade of his 
discharge. 

4.  By regulation (AR 635-200), 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. A discharge under other than honorable 
conditions is normally considered appropriate.

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

6.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an upgrade of his under other 
than honorable conditions discharge to an honorable discharge. He contends he had 
mental health conditions 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 Regular Army on 5 March 1975; 2) On 8 December 1976, the 
applicant was convicted by special court-martial of damaging a car and stealing a 
number of items; 3) The applicant was discharged on 14 April 1977, Chapter 10 of AR 
635-200, in lieu of trial by court-martial, with an under other than honorable 
characterization of service; 4) On 27 March 1979, the Army Discharge Review Board 
(ADRB) reviewed and denied his request to upgrade his discharge; 5) On 23 January 
1991, the ABCMR also denied his request for an upgrade of his discharge.
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military service and medical records. The VA’s Joint 
Legacy Viewer (JLV), academic records, and hardcopy VA medical documentation 
provided by the applicant were also examined.
    d.  On his application, the applicant noted other mental health conditions were related 
to his request, as a contributing and mitigating factors in the circumstances that resulted 
in his separation.  The applicant also stated he was illiterate at the time of his active 
service, and he was unable read or understand the charges brought against him.  There 
was evidence the applicant was seen by a social worker after arriving at the Retraining 
Brigade. He was reported to have a difficult childhood and limited education. The 
applicant was found to be immature and susceptible to peer pressure, and he was inept 
for military service. There was insufficient evidence that he was diagnosed with a 
mental health condition or was found to be incompetent. 
    e.  The applicant also provided academic records in his application. There was 
evidence that he did perform poorly in school, but there was insufficient evidence that 
he was unable to read or write. A review of JLV and hardcopy VA medical 
documentation provided evidence the applicant has been diagnosed and treated for 
PTSD and depression since 2011 and 2020. The applicant’s more recent behavioral 
health symptoms were attributed to medical complications and not his military service. 
The applicant reported to experiencing potentially traumatic events during his military 
service. However, his report of his military career was inconsistent with his miliary 
record. The applicant does not receive any service-connected disability. 
    f.  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, there is sufficient evidence the applicant has been diagnosed with 
PTSD and depression by the VA. The applicant stated he was illiterate during his 
military career and was unable to understand the charges brought against him. 
However, there is insufficient evidence to support this assertion. 

    (2)  Did the condition exist or experience occur during military service?  Yes, the 
applicant reported experiencing a mental health condition and illiteracy during his 
military service. However, there is insufficient evidence that he was illiterate.

    (3)  Does the condition experience actually excuse or mitigate the discharge? No, 
there is sufficient evidence the applicant was diagnosed with PTSD and depression by 
the VA years after his military service. The applicant reported his symptoms were 
related to some potentially traumatic events that he stated occurred during his military 
service. Yet, the applicant has not been awarded service-connected disability for these 
conditions, and his report of his military service and his attendance to the VA for 
assessment and care has been inconsistent. 

    g.  There is also insufficient evidence the applicant was illiterate during his military 
service. He did provide evidence that he performed poorly at certain points, but there 
was evidence he had completed the grades required for reading and writing. The 
applicant was evaluated by a social worker at one point during his military career, and 
he was not diagnosed with a mental health condition or found incompetent. Lastly, there 
is no nexus between the applicant’s report of experiencing a mental health condition 
and illiteracy and damaging and stealing property given that: 1) these types of 
misconduct is not part of the natural history or sequelae of illiteracy or the mental health 
conditions the applicant described; 2) Illiteracy and the mental health conditions he 
described experiencing do not affect one’s ability to distinguish right from wrong and act 
in accordance with the right. 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:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition, available military records and the medical advisory the Board 
concurred with the advising official finding insufficient evidence to support the applicant 
had condition or experience that mitigated his misconduct.  The medical opined 
determined there is no nexus between the applicant’s report of experiencing a mental 
health condition and illiteracy and damaging and stealing property given that: these 
types of misconduct is not part of the natural history or sequelae of illiteracy or the 
mental health conditions the applicant described. The Board determined the applicant 
has not demonstrated by a preponderance of evidence an error or injustice warranting 
the requested relief, specifically an upgrade of the under other than honorable 
conditions (UOTHC) discharge to an honorable discharge.

2.  The Board found insufficient evidence of in-service mitigating factors to overcome 
the misconduct. The Board noted, the applicant provided insufficient evidence of post-
service achievements or character letters of support that attest to his honorable conduct 
that might have mitigated the discharge characterization. The Board determined the 
applicant’s service record exhibits numerous instances of misconduct during his 
enlistment period for 1 year, 11 months, and 17 days of active service and he had 53 
days of lost time. The Board found insufficient evidence to reverse the previous board 
decision, therefore relief was denied.

3. This board is not an investigative body.  The Board determined despite the absence 
of the applicant’s medical records, they agreed the burden of proof rest on the applicant, 
however, he did not provide any supporting documentation and his service record has 
insufficient evidence to support the applicant contentions of mental health concerns and 
his contentions of illiteracy. 


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 Board found 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 Docket 
Number AC90-07658 on 23 January 1991. 
	 
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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

2.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations, and mitigating factors, when taking action on applications from former 
service members administratively discharged under other than honorable conditions, 
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.

3.  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; TBI; 
sexual assault; sexual harassment.  Boards were directed to consider 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 that misconduct which led to the discharge.

4.  On 25 July 2018, 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/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.  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 based on equity, 
injustice, or clemency grounds, BCM/NRs 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.  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.

5.  Section 1556 of Title 10, United States 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)	AR20220010662


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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