IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230000108 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his undesirable discharge under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Birth Certificate FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200001610, on 21 April 2021. 2. The applicant states, in effect, the Army unjustly gave him an undesirable discharge under other than honorable conditions. On his DD Form 149, in item 13 (Are Any of the Following Issues/Conditions Related to Your Request), the applicant has checked, "Other Mental Health" issues. a. The applicant was 18 years old when drafted into the Army from Puerto Rico. While in training, he felt a great deal of pressure and was experiencing depression and anxiety due to an inability to provide for his son and his son's mother; to make matters worse, he did not speak English well and the language barrier caused further problems. b. The applicant's son was born during his basic combat training (BCT); he submits a copy of his son's birth certificate as proof. The applicant notes his leadership allowed him only 3 days to see his son, but this was not enough time to resolve his financial problems and his concerns for the well-being of his child; the situation turned out to be much more difficult than he had realized. The applicant declares he had no one to help him, and he feels the circumstances of being caught between serving his country and caring for his family forced him to go absent without leave (AWOL). c. Later, due to his AWOL, the Army put him in jail for 22 days; while there, they treated him like a second-class citizen. The second time they put him in jail, they forced him to perform hard labor, consisting of moving 200 pound cement parking blocks with only two people; he injured his back, and the Army's only form of treatment was to provide pain medications. He still experiences lower back pain because of the injuries he incurred. d. That second time the Army incarcerated the applicant, they gave him a release form to sign, but, due to the language barrier, he had no understanding of what the document contained; they pressed him up against the wall, and his commander told him, "Either you sign the release or you go to jail." At no time did anyone offer help or any time of clemency; "The fact that no compensation for my injuries was given violates my rights. Since in jail, I was still considered government property, the treatment of my injuries were (sic) the responsibility of the United States Army." e. The applicant concludes, "Analyzing all the events that I went through while in the United States Army, especially while in jail, has allowed me to realize that without any doubt I was tricked to sign my release form. I feel my rights were violated and no human consideration was ever given to me. Giving me a court-marshal (sic) and assigning me to forced labor violated my rights, because at no time was I ever offered counseling or any kind of psychological therapy, due to the hardships that I was going through." 3. A review of the applicant's service record reveals the following: a. On 16 September 1969, the Army of the United States (AUS) inducted the applicant for 2 years; orders assigned him to Fort Gordon, GA for initial entry training, and he arrived, on or about 22 November 1969. b. On 23 January 1970, the applicant's training unit reported him as AWOL and, on 4 February 1970, dropped him from unit rolls. On 14 December 1970, the applicant returned to military control; the applicant's record does not show whether he surrendered himself or was apprehended. Orders assigned him to the U.S. Army Personnel Control Facility (PCF) at Fort Dix, NJ. On 17 February 1971, the PCF reported the applicant as AWOL and, on 19 February 1971, dropped him from unit rolls; the applicant returned to military control, on 9 March 1971. c. On 2 June 1971, and consistent with the applicant's plea, a summary court- martial convicted the applicant of being AWOL from 23 January to 14 December 1970 (325 days). The court sentenced the applicant to 30-days' confinement, and he was immediately remanded to the Post Stockade. On 4 June 1971, the summary court- martial convening authority approved the sentence and ordered its execution. On 25 June 1971, after 23 days of incarceration, the confinement facility released the applicant and returned him to duty at Fort Dix. d. On 12 July 1971, the applicant's unit reported him as AWOL and immediately dropped him from unit rolls. On 1 March 1973, civilian authority arrested the applicant and returned him to military control; orders sent him back to the Fort Dix PCF. On 6 March 1973, the PCF preferred court-martial charges against the applicant for having been AWOL from 12 July 1971 to 1 March 1973 (598 days). e. On 16 March 1973, after consulting with counsel, the applicant requested discharge, in accordance with chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel); in his request, he acknowledged that no one had forced him to ask for this separation, and he elected not to submit statements in his own behalf. f. On 9 April 1973, the separation authority approved the applicant's separation request and directed his undesirable discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. g. On 30 April 1973, orders separated the applicant with an undesirable discharge under other than honorable conditions; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 2 months, and 22 days of his 2-year AUS commitment, with 969 days of lost time (AWOL and confinement). Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the National Defense Service Medal and a marksmanship qualification badge. h. On 12 February 1979, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service and a personal appearance. (1) In a written brief, the applicant's counsel contended the applicant's ability to serve satisfactorily had been impaired due to his limited English, his low Armed Forces Qualification Test scores, and the fact he had only completed the 11th grade. In addition, the applicant's periods of AWOL occurred because the mother of his children left them, and his children were about to be placed in an orphanage. Rather than separate the applicant under chapter 10, AR 635-200, the Army should have used the Trainee Discharge and Expeditious Discharge Programs, as both were applicable to the applicant's circumstances. (2) On 27 December 1980, the applicant and his counsel appeared before the ADRB, and the applicant testified as to his personal history and the events surrounding his periods of AWOL. (a) The applicant told the ADRB that, after his first AWOL, he faced a summary court-martial, and the court sentenced to confinement. Upon his release, they put him in a regular unit, but he started having marital problems; he left for several days. He spoke to his company commander who said he would not press charges if he came back, so he returned to military control. Shortly after his return, his sister notified him that he would have to take care of his two children. He tried to move his children to Fort Dix, but his commander would not allow it; he went AWOL again to care for his children. Eventually, civilian police picked him up and sent him back to Fort Dix. (b) When he returned to Fort Dix, the applicant still had custody of his children, and, because there was no one to care for his kids, he wanted out of the stockade as soon as possible; as a result, he opted for a chapter 10, and they released him. (3) After hearing testimony and reviewing the applicant's service record, the ADRB voted to deny relief. i. On 12 February 2020, the applicant applied to the ABCMR for an upgrade to an honorable discharge. (1) The applicant maintained that his language barrier and his family problems led to his AWOL. After his return to military control, the Army jailed him, and he sustained injuries while incarcerated. He stated, "I was asked to sign a release even though I didn't understand what I was signing." (2) On 21 April 2021, the Board denied the applicant's request after determining the applicant's military records contained no in-service mitigating factors to overcome the misconduct. In addition, the applicant provided no evidence of post-service achievements or letters of reference to support of a clemency determination. 4. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts- Martial (MCM) then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a punitive discharge. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request to upgrade his undesirable discharge under other than honorable conditions. 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 was inducted into the US Army on 16 September 1969; 2) The applicant was found AWOL from 23 January-14 December 1970 and then again from 19 February-9 March 1971; 3) On 2 June 1971, and consistent with the applicant's plea, a summary court-martial convicted the applicant of being AWOL; 4) On 30 April 1973, orders separated the applicant with an undesirable discharge under other than honorable conditions; 4) On 12 February 1979, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service and a personal appearance. He was denied. On 12 February 2020, the applicant again applied to the ABCMR for an upgrade to an honorable discharge. He was denied on 21 April 2021. 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. No additional medical documentation was provided. d. The applicant asserts he experienced stress, depression, and anxiety while on active service, because he felt unable to care for his newborn son and his son s mother. The applicant stated the situation and the resulting mental health symptoms contributed to his decision to go AWOL. On his application, he noted other mental health was related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. While on active service, there is insufficient evidence the applicant was reporting or diagnosed with a mental health condition. A review of JLV was void of mental health documentation, and the applicant receives no service- connected disability. The applicant did not provide any additional medical documentation from a licensed provider. e. 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 mental health conditions that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing 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 any mental health condition while on active service. The applicant did go AWOL, which can be a sequel to stress, depression, and anxiety, but this is not sufficient to establish a history of these conditions during active service. However, the applicant contends he was experiencing a mental health condition and an experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board s consideration. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence available for review, 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 Board determined 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, United States Code, section 1556 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Separation authorities could characterize a Soldier's service as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and MCM, included a punitive discharge as a punishment. (1) The Soldier could submit such a request at any time after court-martial charges were preferred; commanders had to insure no one coerced the Soldier into submitting a request for discharge and that the Soldier had a reasonable amount of time to consult with counsel. If, after consulting with counsel, the Soldier chose to submit a separation request, he/she had to do so in writing, and the Soldier's counsel had to sign as a witness. (2) Once the separation authority approved the Soldier's discharge request, an undesirable discharge was normally furnished, but the separation authority could direct either an honorable or a general discharge, if warranted. 3. The MCM then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a punitive 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 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. 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, 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. 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) AR20230000108 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1