IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230000114 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to a more favorable one. Additionally, he requests an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Identification Card- FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 he was introduced to alcohol at one station unit training at Fort Knox, KY. Alcohol quickly became a problem for him. He struggled with this problem for several years until by the grace of God and support from his family and friends, he overcame this problem. He has since become a very productive and civic minded citizen. He has earned both a master plumbing and master electrician’s license. He volunteers with nonprofit organizations such as the March of Dimes and Habitat for Humanity. He is a member of the Free Masons. While he is not trying to justify his actions, he feels that his superiors should have recognized his problem and taken some action such as rehabilitation. 3. The applicant enlisted in the Regular Army on 24 May 1985 for four years. His military occupational specialty was 19E (Armor Crewman). 4. The applicant was reported absent without leave (AWOL) on 13 January 1987. He failed to report on the prescribed reporting date for movement to Germany. He was dropped from the unit rolls as a deserter on 24 February 1987. He surrendered to military authorities at Fort Knox, KY on 24 February 1987. 5. The applicant consulted with legal counsel on 2 March 1987 and waived all defenses that may have become known had his defense counsel been able to review his records and knowing this to be true, he knowingly, willingly, and voluntarily declared that he was AWOL form on or about 13 January 1987 to on or about 24 February 1987. He understood he may be giving up an honorable discharge. 6. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing however: a. Orders 48-2, issued by Headquarters, U. S. Army Personnel Control Facility Fort Knox, KY on 13 March 1987, reduced him to the rank/grade of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service -in lieu of court martial. b. Orders 70-12, issued by Headquarters, U. S. Army Armor Center Fort Knox, KY on 13 April 1987, transferred him to the separation point for discharge, effective 20 April 1987. 7. The applicant was discharged on 20 April 1987. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of court- martial, with Separation Code JFS. His service was characterized as UOTHC. He completed 1 year, 9 months, and 16 days of net active service. He lost time from 13 January 1987 to 23 February 1987. 8. The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 9. 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. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he was experiencing alcohol addiction 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 24 May 1985; 2) The applicant was found to be AWOL from 13 January 1987-24 February 1987; 3) The applicant was discharged on 20 April 1987, Chapter 10, for the good of the service – in lieu of court martial. His service was characterized as UOTHC. 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 was experiencing alcohol addiction, which is related to his request, as a mitigating factor in the circumstances that resulted in his separation. There was insufficient evidence the applicant reported mental health symptoms or alcohol addiction while on active service. A review of JLV was void of mental health documentation, and the applicant receives no service-connected disability for a mental health condition. 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? No, the applicant contends he was experiencing alcohol addiction while on active service. He did not report experiencing any mental health conditions or potentially traumatic events, while on active service. Those experiencing substance addiction are able to determine the difference between right and wrong and act in accordance with the right. Therefore, there is insufficient evidence to support the applicant had a condition or experience that mitigated his misconduct (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A 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 medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had a condition or experience that mitigated his misconduct. As noted, in the medical opine, there was insufficient evidence the applicant reported mental health symptoms or alcohol addiction while on active service. A review of JLV was void of mental health documentation, and the applicant receives no service-connected disability for a mental health condition. 2. The Board determined; the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board agreed the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 9 months, and 16 days of net service for this period. 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. Therefore, relief was denied. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence 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 evidence or 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. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, 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) AR20230000114 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1