IN THE CASE OF: 
 
  BOARD DATE: 29 August 2023 
 
  DOCKET NUMBER: AR20230000633 
 
 
APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his discharge under conditions other than honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 

• Wayne State University Letter, 13 September 2019 

• Curriculum Vitae 


 
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 AC97-10612 on 10 November 1998. 
 
2.  The applicant states he fell asleep on post after a few weeks of being tasked to guard a junkyard every day due to believing his task was a waste of time. He received nonjudicial punishment (NJP) twice under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). His best friend died of a drug overdose while he was in the service, as drugs were rampant in his unit. As a result of not feeling wanted by the military, the segregation in the military at the time, the death of his friend, and the military not giving him any chances, he accepted the discharge under other than honorable conditions because he was done with the military. He indicated "Other Mental Health" was related to his request. 
 
3.  He enlisted in the Regular Army on 1 July 1971. 
 
4.  On 11 January 1972, he accepted company-grade NJP under the provisions of Article 15, UCMJ, for absenting himself from his unit without authority on eight separate occasions between on or about 29 December 1971 and on or about 6 January 1972. His punishment consisted of forfeiture of $50.00 pay per month for 1 month, reduction to the rank/grade of private/E-2, 14 days of restriction, and 14 days of extra duty. 
 
5.  On 22 February 1972, he accepted company-grade NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on seven separate occasions between on or about 14 February 1972 and on or about 18 February 1972. His punishment consisted of forfeiture of $50.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty. 
 
6.  On 24 March 1972, court-martial charges were preferred against him for the following charges and specifications: 
 
 a.  Charge I: violation of Article 134 (General Article), UCMJ: 
 
  (1)  specification 1, for breaking restriction on or about 1 March 1972 after having been duly restricted to the limits of his unit; 
 
  (2)  specification 2, for breaking restriction on or about 25 February 1972 after having been duly restricted to the limits of his unit; 
 
  (3)  specification 3, for breaking restriction on or about 6 March 1972 after having been duly restricted to the limits of his unit; and 
 
 b.  Charge II: violation of Article 86 (Absent Without Leave (AWOL)), UCMJ: 
 
  (1)  specification 1, for absenting himself from his place of duty without authority on or about 22 February 1972 and remaining so absent until on or about 22 February 1972; 
 
  (2)  specification 2, for absenting himself from his place of duty without authority on or about 23 February 1972 and remaining so absent until on or about 23 February 1972; 
 
  (3)  specification 3, for absenting himself from his place of duty without authority on or about 15 March 1972 and remaining so absent until on or about 15 March 1972; 
 
  (4)  specification 4, for absenting himself from his place of duty without authority on or about 17 March 1972 and remaining so absent until on or about 17 March 1972; 
 
  (5)  specification 5, for absenting himself from his place of duty without authority on or about 18 March 1972 and remaining so absent until on or about 18 March 1972; 
 
  (6)  specification 6, for failing to go at the time prescribed to his appointed place of duty on or about 14 March 1972; 
 
  (7)  specification 7, for failing to go at the time prescribed to his appointed place of duty on or about 15 March 1972; and 
 
  (8)  specification 8, for failing to go at the time prescribed to his appointed place of duty on or about 17 March 1972. 
 
7.  On 15 May 1972, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 
 
 a.  He acknowledged that he made the request of his own free will and was not coerced by any person. He understood that if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. 
 
 b.  He further acknowledged that he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (now known as the Department of Veterans Affairs), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. 
 
 c.  He elected to not submit statements in his own behalf. 
 
8.  On 26 May 1972, his company and battalion-level commanders recommended approval of his request for discharge for the good of the service with issuance of an Undesirable Discharge Certificate. 
 
9.  On 22 June1972, the separation approval authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation  635-200, chapter 10, with issuance of an Undesirable Discharge Certificate. He further directed the applicant's immediate reduction to the rank/grade of private/E-1. 
 
10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in the rank/grade of private/E-1 on 27 July 1972 under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year and 18 days of net active service during this period with lost time from 18 May 1971 to 31 May 1971 and from 18 February 1972 to 26 February 1972. His service was characterized as under conditions other than honorable. His DD Form 214 does not list any individual awards or decorations. 
 
11.  The ABCMR considered the applicant's request for an upgrade of his under conditions other than honorable service characterization in ABCMR Docket Number 
AC97-10612 on 10 November 1998. The Board determined he failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and his request for an upgrade of his service characterization was denied. 
 
12.  He provided the following evidence for consideration: 
 
 a.  The letter of recommendation from Mr. E____ J____, 13 September 2019, states the applicant was employed at Wayne State University's Veterans' Upward Bound Program under the National Club Baseball Association Program from May 2007 through September 2010. During his tenure, he demonstrated a high level of responsibility in the fields of interpersonal interactions and effective organizational skills. He also provided excellent customer service. He always made the extra effort when deadlines were approaching, performed exceptionally, and accomplished the assignment at hand. He also attended and completed various courses during the Winter 2008 through Fall 2010 semesters. The Veterans Upward Bound Program prepares veterans who are in need of college preparation courses. Throughout his tenure here, he received instruction and tutoring in computers, mathematics, and study survival courses. He applied himself fully to learning new skills that were needed for the job. He is confident that the applicant will perform well in his new position should he be given the opportunity. 
 
 b.  His curriculum vitae describes his employment and education history during the period 2005 to 2020. 
 
13.  MEDICAL REVIEW: 
 
    a.  The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his discharge under conditions other than honorable. He contends he had mental health condition 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 1 July 1971; 2) On 24 March 1972, court-martial charges were preferred against him for three specifications of breaking restriction and eight specifications for being AWOL or failing to go at the time prescribed to his appointed place of duty; 3) The applicant was he was discharged on 27 July 1972, Chapter 10. His service was characterized as under conditions other than honorable. 
    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. 
The applicant asserts on his application that a mental health condition is related to his request as a contributing and mitigating factor in the circumstances that resulted in his 
separation. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV provided evidence the applicant has received assistance from the VA for homelessness and mental health conditions. However, the applicant has not been diagnosed with a service-connected mental health condition.  
    d.  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 a mental health condition that contributed to his misconduct.  
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant reports experiencing a mental health condition 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 a mental health condition while on active service. The applicant did go AWOL and break restriction on numerous occasions, which can be a sequalae to some mental health conditions, but this is not sufficient to establish a history of a condition during active service.  However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration.   
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After 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 and carry an under other than honorable conditions characterization of service. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. 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. 
 
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 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 AC97-10612 on 10 November 1998. 
 
  8/29/2023

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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 15 July 1966 and in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 a.  Chapter 10 provided that a Soldier who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. Commanders will ensure that a Soldier is not coerced into submitting a request for discharge for the good of the service. The Soldier will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the Soldier may elect to submit a request for discharge for the good of the service. The Soldier will sign a written request, certifying that he or she was counseled, understood his or her rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a Soldier who was discharged for the good of the service. However, the separation authority was authorized to direct a general discharge if such were merited by the Soldier's overall record during his or her current enlistment. For Soldiers who had completed entry-level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. 
 
 b.  An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. 
 
 c.  A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 
 
 e.  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. 
 
3.  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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. 
 
 a.  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//