IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000398 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions, general or honorable. 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) * Certificate * Character Letters (seven) 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 is a Native Lakota Veteran and at the time of his discharge he could not relate to any therapy that was available to him. He lives in rural South Dakota and has attempted to upgrade his discharge on three different occasions through the years. 3. On his DD Form 149, the applicant notes mental health is related to his request; however, he did not provide medical documentation in support of this contention. 4. The applicant enlisted in the Regular Army on 11 December 1970 for three years. His military occupational specialty was 11C (Infantry Indirect Fire Crewman). 5. He was honorably discharged on 30 January 1972 for immediate reenlistment. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he completed 1 year, 1 month, and 20 days of net active service. He was awarded or authorized the National Defense Service Medal and Parachutist Badge. 6. The applicant reenlisted in the Regular Army on 31 January 1972 for three years. 7. He served in Korea from 8 March 1972 through 17 June 1972. 8. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 April 1972, for being found drunk on duty as a sentinel on or about 16 April 1972 and failing to go at the time prescribed to his appointed place of duty on or about 16 April 1972. His punishment consisted of reduction to private/E-1 (suspended), forfeiture of $100.00 pay, detention of $100.00 pay for two months, and restriction for 20 days. 9. Court-martial charges were preferred against the applicant for violations of the UCMJ on 5 June 1972 for: * violating a lawful general regulation by being off the compound on or about 3 June 1972 until 3 June 1972 without possession of an overnight pass * without authority, failing to go at the time prescribed to his appointed place of duty on or about 3 June 1972 * willfully disobeying a lawful order on or about 3 June 1972 * behaving with disrespect toward his superior commissioned officer by saying I don t take orders from a white man on or about 3 June 1972 * having been duly placed in arrest did break said arrest on or about 3 June 1972 10. The applicant consulted with legal counsel on 5 June 1972 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that he may be deprived of many or all Army benefits, that he may be ineligible for many, or all benefits administered by the Veterans Administration and that he may be deprived of his rights and benefits as veteran under both Federal and State law. b. He did not submit a statement in his own behalf. 11. The applicant s immediate commander recommended a trial by special court- martial. On 9 June 1972, the applicant s chain of command recommended the applicant be tried by special court-martial. 12. On 15 June 1972, his medical clearance was granted. His Report of Medical Examination, dated 16 June 1972, shows he was qualified for separation. 13. The separation authority approved the applicant's request for discharge, for the good of the service in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and receive a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 18 June 1972. His DD Form 214 shows he was discharged under the provisions AR 635-200, Chapter 10, with Separation Program Number 246 [for the good of the service-in lieu of trial by court-martial]. His characterization of service was UOTHC. He completed 4 months and 18 days of net active service. He was awarded or authorized the Armed Forces Expeditionary Medal. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. The applicant provides: a. A Certificate of Recognition a member of the American Legion. b. Character letters that attest the applicant is living a quiet, sober life, with a good sense of humor. He minds his own business. He is a positive influence and good contributor to the community. He is a hard worker and a good/active American Legion Post Number 82 member who is very active in veteran s activities. He is always very pleasant and an overall outstanding citizen of the community. He handles his business very well and professionally. 17. On 9 November 1987, the Army Discharge Review Board considered the applicant s request for discharge upgrade and determined he was properly discharged, and denied his request for relief. 18. 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. 19. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the Record of Proceedings (ROP). There were no available records found in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS), or in the VA's Joint Legacy Viewer (JLV) under the applicant s name and social security number. The applicant requests an upgrade in characterization of service from Under Other Than Honorable Conditions to Honorable or to Under Honorable Conditions, General. b. The applicant s available military record was summarized in the ABCMR ROP. Of pertinence, he entered service 11Dec1970. His MOS was Infantry Indirect Fire Crewman. He deployed to Korea from March to June in 1972. He was discharged under provisions of AR 635-200 chapter 10 for the good of the service in lieu of trial by court-martial, effective 16Jun1972. The charges included the following offences: A pass violation; failed to report to appointed place of duty; failed to obey a lawful command; he behaved disrespectfully to a superior officer; and failed to obey a house arrest order. The record also included an instance of being found drunk on duty. c. The 11Dec1970 entrance exam did not reveal a history of mental health issues. He was examined 15Jun1972 and medically cleared after his return from deployment. The 16Jun1972 exam for discharge was incomplete; however, the applicant did indicate that he did not have the following behavioral health symptoms: Frequent trouble sleeping; frequent or terrifying nightmares; depression or excessive worry; and nervousness of any sort. He also denied a history of attempted suicide. d. There were no behavioral health records available for review not while he was still in service nor that were captured in the JLV record. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance were considered; however, there was insufficient available medical records to reasonably support that the applicant had PTSD, TBI, MST or other boardable behavioral health condition(s) during his military service that would be a mitigating factor for the misconduct that resulted in his discharge from the Army. Recommendation: Because a mitigating BH condition was not found, a discharge upgrade could not be recommended that was based on liberal consideration guidance. The Board could consider a discharge upgrade based on compassion and/or based on passage of time. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No. A behavioral health condition was not shown in records. (2) Did the condition exist, or did the experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant s contentions, the military record, regulatory and whether to apply clemency. The Board considered denying relief; however, based on the applicant s letters of support and evidence of post-service accomplishments, the Board agreed that the applicant met the burden of proof to weigh in favor of relief. Based on the preponderance of documentation available for review and given that the applicant served approximately fifty years ago, the Board determined that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx : :xx GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :xx : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 ending 18 June 1972 to show the character of service as Under Honorable Conditions. 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 (USC), 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. AR 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. AR 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 Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including 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. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs 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) AR20230000398 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1