IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230000316 APPLICANT REQUESTS: an upgrade of his characterization of service from an Under Other than Honorable Conditions discharge to a General discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of discharge from the Armed Forces of the U.S.), 20 September 2022 * DD Form 149 (Application for Correction of Military Record), 20 September 2022 * Self-authored letter, undated * DD Form 214 (Report of Separation from Active Duty) * VA Form 10-7131 (Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action), undated * VA Form 21-4138 (Statement in Support of Claim), undated 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 wants an upgrade so he can get some medical help. He has paid for his past mistakes, and he is trying to move forward with his life and become a productive U.S. citizen. The applicant marked Other mental health conditions on his DD Form 293. He adds that he made some bad decisions in his younger days when he was in the Army. He started drinking really heavy that led him to make some bad choices. One of those bad choices got him in trouble and he was relieved of his duties and discharged from the Army with an 'other than Honorable' discharge. He has regretted that mistake for the past 45 years. He has made a lot of hard changes in his life since then. He quit drinking and gave his life to God. He has talked to several people that think he should have a general discharge that will help him at least die with some dignity and have a decent burial. It would also help him work though some of his mental problems he has been going through. 3. On 26 September 1975, the applicant enlisted in the Regular Army. He was assigned to Fort Bragg, NC. 4. On 31 March 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for on or about 16 March 1976 wrongfully possessing marijuana. His punishment consisted of forfeiture of $50.00 per month for one month; 14 days restriction, and 14 days extra duty. 5. Special Court-Martial Order Number 74, issued by Headquarters, XVII Airborne Corps and Fort Bragg, shows a Special Court-Martial convened on 2 September 1977. The applicant was arraigned, tried, and convicted of the following charges: a. Charge I: Violation of the UCMJ, Article 86. Specification: in that the applicant did, on or about 4 May 1976, without authority absent himself from his unit, to wit: Service Company, 5th Special Forces Group (Airborne), 1st Special Forces, Fort Bragg, NC, located at Fort Bragg, NC and did remain so absent until on or about 15 May 1976. b. Charge II: Violation of the UCMJ, Article 10. Specification: in that applicant did, at Troy, N. on or about 4 May 1976, without proper authority, through neglect damage by hitting a tree [with] a ton truck, of a value of about $3300.87, military property of the U.S, the amount said damage being in the sum of about $95.68. c. Charge III: Violation of the UCMJ, Article 121. Specification: in that applicant did, at Troy, NC, on or about 4 May 1976, wrongfully appropriate a ton truck, of a value of about $3300.87, and a ton cargo trailer, of value of about $337.00, of a total value of about $3637.87, the property of the U.S. Government. d. The court sentenced him to reduction to grade of private E-1, forfeiture of $240.00 pay per month for three months, confinement for three months, and a bad conduct discharge (BCD). e. The sentence was adjudged on 2 September 1976. f. On 22 October 1976, the conveying authority approved the sentence and ordered it executed, but the execution of that portion thereof adjudging a bad conduct discharge is suspended for six months, at which time, unless the suspension is sooner vacated the suspended portion shall be remitted without further action. The record of trial is forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. Pending completion of appellate review, the accused will be confined in the U.S. Army Retraining Brigade, Fort Riley, KS, or elsewhere as competent authority may direct. 6. Special Court-Martial Order Number 22, issued by Headquarters, XVII Airborne Corps and Fort Bragg, 14 April 1977 shows so much of the order published in Special Court-Martial Order Number 74, this Headquarters, dated 22 October 1976, as suspends execution of the sentence to bad conduct discharge in the case of [applicant], is vacated pursuant to Article 72. Article 7l(c) having been complied with, the sentence to be discharged from the service with a BCD will be duly executed. 7. The applicant was discharged from active duty on 9 May 1977. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 11, SPD JJD, with the issuance of a Under Other than Honorable Conditions. * He completed 1 year, 4 months, and 9 days of net active service this period. * He was awarded or authorized the Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) * Sharpshooter Badge M-16. * He had 95 days lost under Title 10 U.S.C. 972- and 26-days excess leave. * He received a separation code of "JJD" and a reentry code of "3." 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of that regulation states, in pertinent part, that a member will be given a bad conduct discharge 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. 10. In reaching its determination, the Board can consider the applicant s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 11. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his characterization of service from an Under Other than Honorable Conditions (UOTHC) discharge to a General 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 26 September 1975; 2) On 31 March 1976, the applicant accepted nonjudicial punishment (NJP) for wrongfully possessing marijuana; 3) A Special Court-Martial convened on 2 September 1977. The applicant was arraigned, tried, and convicted of the following charges: A) the applicant went AWOL from 4-15 May 1976; B) The applicant also wrongfully appropriated a ton truck and a cargo trailer (both property of the U.S. Government) and ran it into a tree; 4) The applicant was discharged on 9 May 1977, Chapter 11. 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 drinking heavily while on active service, which lead him to make some bad decisions. 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 some mental health conditions, but this is not sufficient to establish a history of a condition or experience during active service. In addition, there is no nexus between his reported mental health condition and appropriating a government vehicle and driving it into a tree. 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 and weigh in favor of a clemency determination and the applicant provided none on his own behalf. 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, 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 (Personnel Separations) 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600 8 19. 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 5. 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 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. 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. 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000316 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1