IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000622 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general) and a personal appearance hearing via telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 24 October 2022 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 AR20100010822 on 30 September 2010. 2. The applicant provides new argument or evidence not previously considered by the Board. 3. The applicant states, he had problems in Fort Sill, OK. He went to Fort Raleigh, training brigade and attempted suicide; he was unstable. He was reassigned to Fort Belvoir, VA for re-training. His paperwork was mixed up and he was accidently sent overseas. His commander called him into the office and said if he made the slightest mistake, he would regret it. He could not handle it, and he was going through a lot. He was told that he needed help and has been in mental wards. 4. On 7 August 1979, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) 52C, Utilities Equipment Repairer. 5. Summary Court-Martial Order Number 23, issued by Headquarters, 214th Field Artillery Brigade, on 2 May 1980 shows the applicant was arraigned, tried, and convicted by a Summary Court-Martial, of the following charge(s) and specification(s): a. Charge I, violation of Article 91 Insubordinate Conduct Toward Noncommissioned Officer), Specification: in that the applicant did at Fort Sill, OK, on or about 8 April 1980, treat with contempt Sergeant , his superior non-commissioned officer by saying to him, “You are not going to say nothing about this, are you” or words to that effect, while pointing his M-16 rifle at Sergeant in a contemptuous manner. b. Charge II, violation of Article 92 (Disobeying a direct order), Specification: in that the applicant did at Fort Sill, OK, having knowledge of a lawful order issued by Sergeant , to get rid of the marijuana cigarette, an order which it was his duty to obey, did on 8 April 1980, fail the same. c. The court sentenced him to a reduction of rank/grade to grade of private E-1, forfeiture of $299.00 pay per month for one month, and confinement at hard labor for 30 days. d. The sentence was adjudged on 2 May 1980. e. On 2 May 1980, the convening authority approved the sentence and ordered it be executed. The U.S. Army Confinement Facility, Fort Sill, OK was designated as the place of confinement or elsewhere as competent authority may direct. 6. On 5 June 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly in the unit on 31 May 1980. His punishment consisted of forfeiture of $50.00 pay for one month. 7. Charges were preferred against the applicant on 20 January 1982 for wrongful possession of 14 grams, more or less, of marijuana in the hashish form. 8. On 2 February 1982, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other than Honorable Conditions Discharge if his request was approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: a. He acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understand the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many, or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. d. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 9. On 12 March 1982, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate. 10. On the same day, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service UP of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 11. The applicant was discharged from active duty on 19 March 1982. 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, as the result of Administrative Discharge Conduct Triable by Court-Martial and the issuance of a Under Other Than Honorable Conditions Certificate. His DD Form 214 also shows: a. He completed 2 years, 6 months, and 22 days of net active service this period. b. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Army Service Ribbon, and the Overseas Service Ribbon. c. He received a separation code of "JFS" and reenlistment code of "3,3B, 3C." d. Lost time during the period 2 May 1980 to 22 May 1980. 12. On 5 October 2010, in ABCMR Docket Number AR20100010822, the Board denied his request for an upgrade of his discharge. 13. Regulatory guidance provides a member who has committed an offense 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 under the provision of AR 635-200, chapter 10. 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. 14. 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. 15. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request to upgrade his UOTHC discharge. He contends his misconduct was related to Other Mental Health Issues. 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 into the Regular Army on 7 August 1979; 2) Summary Court-Martial Order Number 23, issued by Headquarters, 214th Field Artillery Brigade, on 2 May 1980 shows the applicant was arraigned, tried, and convicted by a Summary Court-Martial, as outlined in the ROP; 3) On 5 June 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being drunk and disorderly in the unit on 31 May 1980; 4) Charges were preferred against the applicant on 20 January 1982 for wrongful possession of 14 grams, more or less, of marijuana in the hashish form; 5) On 2 February 1982, the applicant consulted with legal counsel Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; 6) On 12 March 1982, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate; 7) The applicant was discharged from active duty on 19 March 1982 under the provisions of Army Regulation 635-200, Chapter 10, as the result of Administrative Discharge Conduct Triable by Court-Martial and the issuance of a Under Other Than Honorable Conditions Certificate. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No military BH records were provided for review. A review of JLV showed the applicant does not have a service-connected disability. He has a BH treatment history with the VA that appears to consist of two encounters. He was seen on 19 July 2023 as a self-referral with complaints of irritability, anger, depressed mood, anxiety, and insomnia. He reported his daughter asked him to seek treatment after making threats to his family that he might just kill all of them then kill himself. During the encounter he adamantly denied current suicidal or homicidal ideation but reported having suicidal ideation approximately 20 years ago. He refused to complete the intake encounter but agreed to a follow-up at a later date. He was diagnosed with GAD and MDD and scheduled for follow-up. The applicant was seen for follow-up on 14 August 2023 and reported issues with anger and some depression. He reported really being bothered by his administrative discharge from the Army, as it hindered his progress in life. Although the applicant reported being affected by being administratively separated from service, there is no indication in the records that his diagnoses of GAD and MDD, were present during military service. d. The applicant requests reconsideration of his previous request to upgrade his characterization of service under honorable conditions (general). He contends his misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post- service records showed the applicant diagnosed with GAD and MDD in July 2023, however, the records do not associate the applicant’s diagnosis with military service, and instead suggest symptoms developed post-service. In absence of documentation supporting the applicant met diagnostic criteria for a BH disorder during service, there is insufficient evidence to support his misconduct was mitigated by a Other Mental Health Issues, and insufficient evidence to support an upgrade of his discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service. However, the applicant contends his misconduct was related to Other Mental Health Issues, and per liberal guidance, his contention is sufficient to warrant the Board’s consideration. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was related to Other Mental Health Issues. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests reconsideration of his previous request to upgrade his characterization of service under honorable conditions (general). He contends his misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post- service records showed the applicant diagnosed with GAD and MDD in July 2023, however, the records do not associate the applicant’s diagnosis with military service, and instead suggest symptoms developed post-service. In absence of documentation supporting the applicant met diagnostic criteria for a BH disorder during service, there is insufficient evidence to support his misconduct was mitigated by an Other Mental Health Issues, and insufficient evidence to support an upgrade of his discharge characterization. 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 that the applicant had an experience or condition during his time in service. The Board noted, the opine found the applicant’s records was void of any BH diagnosis or treatment history during his service. Post-service records showed the applicant diagnosed with GAD and MDD in July 2023, however, the records do not associate the applicant’s diagnosis with military service, and instead suggest symptoms developed post-service. 2. The Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The applicant provided no evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the characterization and provided the Board consideration for clemency. Based on the facts and circumstances, the Board agreed 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 under honorable (general) discharge. Therefore, the Board denied relief 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 AR20100010822 on 30 September 2010. 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) 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. 2. 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. 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. 3. 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. 4. Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicant's do not have a right to a hearing before the ABCMR. The Director may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000622 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1