IN THE CASE OF:   
 
  BOARD DATE:  29 August 2023 
 
  DOCKET NUMBER:  AR20230000712 
 
 
APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and a personal appearance before the Board, if needed.  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:   
 
• DD Form 149 (Application for Correction of Military Record), with a self-authored statement 

• Privacy Release Authorization, dated 5 November 2022 

• Congressional Liaison Email, dated 16 June 2023 

• Army Review Boards Agency (ARBA), Congressional Liaison and Inquiries response letter, dated 28 June 2023 


 
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, in effect:   
 
a.  All his documents were destroyed in a house fire 40 years ago, so he does not have his discharge information or exact dates. He was at the top of the draft list in 1962, so he went to see a recruiter about his choices if he enlisted. He came back a few days later and enlisted for 3 years to be trained as a combat engineer. He went to Fort Leonard Wood, MO, for his physical and basic training, he was held over for a long time after training, until finally receiving orders to Redstone Arsenal, AL.  
 
b.  They said his delay was because he received a secret clearance. He was not going to be a combat engineer because he was accepted into officer candidate school but needed to extend his tour. He did not do that, and was sent to train in the Hawk Missile guidance section. The classes were long and boring, and he started to drink out of boredom. He asked the commander for a transfer and eventually was transferred to 
Fort Sill, OK, which was even more boring than Redstone Arsenal. He was sent to Germany and was drinking even more. He got drunk and broke a window for no reason. He was sent back to Fort Sill at was placed in the stockade. After that everything was a blur; he went absent without leave (AWOL) and ended up in jail in NC. Army officials came to the jail, he was debriefed and informed of his discharge. 
 
c.  When he was released from prison, he battled alcoholism for the next 20 years. In 1987 he was admitted to a Department of Veterans Affairs (VA) Hospital. He completed a 30-day program and has not touched a drop of alcohol since. He is 79 and still works as a farmer every day, because he does not do well with idle time. The VA doctor told him to hire an attorney because he should have a medical or mental discharge.  
 
d.  On his DD Form 149, the applicant notes mental health is related to his request. 
 
3.  On 8 November 1962, the applicant enlisted in the Regular Army for a 3-year service obligation. His DD Form 4 (Enlistment Record) shows his initial assignment as U.S Army Europe.  
 
4.  His DA Form 20 (Enlisted Qualification Record) shows, he completed basic training at Fort Leonard Wood, MO, and was transferred to Redstone Arsenal, AL. He reported on 27 January 1963.  
 
5.  On 1 April 1963, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from his training site at Redstone Arsenal, AL on or about 24 March 1963 to 25 March 1963.  
 
6.  On 8 April 1963, before a summary court-martial, at Redstone Arsenal, AL, the applicant was found guilty of being AWOL from 24 March 1963 to 25 March 1963. His sentence included forfeiture of $28 for one month and 14 days restriction. The convening authority approved and ordered his sentence duly executed the same day.  
 
7.  On 17 June 1963, the applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, for being apprehended by civil and military police without authorization to be absent from Redstone Arsenal, AL on or about 1 June 1963. His punishment included an oral reprimand and restriction.  
 
8.  On 3 September 1963, the applicant was reassigned to Fort Sill, OK, and arrived on 21 September 1963.  
 
9.  On 12 November 1963, the applicant’s commander issued a memorandum relieving him of duties in the special weapons program. The commander noted he had exhibited 
a lack of dependability, maturity, and self-restraint and was therefore considered unfit for further assignment in the special weapons field. He had been informed of his release from this assignment and was cautioned against releasing information of a classified nature which he gained while performing his duty.  
 
10.  On 12 November 1963, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 shows he was charged with kicking out a display window in Germany, on or about 11 November 1963.  
 
11.  On 19 November 1963, before a summary court-martial, the applicant was found guilty of kicking out a display window on or about 11 November 1963. His sentence included reduction to E-2 and hard labor for 30 days (without confinement). On 20 November 1963, the convening authority approved and ordered his sentence duly executed. However, on 2 December 1963, Summary Court-Martial Order Number 35, issued by the U.S. Army Artillery and Missile Center, Fort Sill, OK set aside his punishment of more than 45 days restriction.  
 
12.  On 3 January 1964, before a special court-martial at Fort Sill, OK, the applicant was found guilty of going AWOL from on or about 3 December 1963 until 22 December 1963; and failing to go at the prescribed time to his appointed place of duty on or about 2 December 1963. His sentence included six months confinement at hard labor and forfeiture of $55 pay for six months. On 27 March 1964, the unexecuted portion of the sentence to confinement at hard labor for six month was suspended for three months, to be vacated without further action.  
 
13.  His DA Form 24 (Service Record) shows he was tried, convicted, and sentenced in the Jackson County, NC jail for larceny. He lost time for civil confinement from 23 April 1964 through 22 January 1965.  
 
14.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Special Orders Number 15, issued by U.S. Army Artillery and Missile Center, Fort Sill, OK on 21 January 1965, ordered the applicant’s discharge. under the provisions of Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), due to his conviction by a civil court.  
 
15.  The applicant was discharged on 22 January 1965. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), with separation program number 284 [Misconduct/Convicted by a civil court during current term of active military service]. He was discharged in the lowest enlisted grade and his service was 
characterized as UOTHC. He was credited with completing 1 year and 29 days of net active service this period, with 413 days of lost time. 
 
16.  In accordance with regulatory guidance, an undesirable (UOTHC) discharge was normally considered appropriate for members separating under this provision of the regulation; however, the separation authority could issue an honorable or a general discharge if warranted by the member's overall record of service.  
 
17.  The applicant provides an email and privacy release authorization, which indicates that he has Congressional interest in his application. 
 
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 applicant requests an upgrade of 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 8 November 1962; 2) On 8 April 1963, before a summary court-martial, at Redstone Arsenal, AL, the applicant was found guilty of being AWOL from 24 March 1963 to 25 March 1963; 3) On 17 June 1963, the applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, for being apprehended by civil and military police without authorization to be absent from Redstone Arsenal, AL on or about 1 June 1963; 4) On 19 November 1963, before a summary court-martial, the applicant was found guilty of kicking out a display window on or about 11 November 1963; 5) On 3 January 1964, before a special court-martial at Fort Sill, OK, the applicant was found guilty of going AWOL from on or about 3 December 1963 until 22 December 1963; 6) His DA Form 24 (Service Record) shows he was tried, convicted, and sentenced in the Jackson County, NC jail for larceny. He lost time for civil confinement from 23 April 1964 through 22 January 1965; 7) The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Special Orders Number 15, issued by U.S. Army Artillery and Missile Center, Fort Sill, OK on 21 January 1965, ordered the applicant’s discharge. under the provisions of Army Regulation 635-206 (Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)), due to his conviction by a civil court. 
    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 was void of any treatment history for the applicant and he does not have a service-connected disability.  No civilian BH records were provided for review.    
    d.  The applicant requests an upgrade of his UOTHC discharge.  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 or post service, and he provide no documentation supporting his assertion of Other Mental Health Issues.  In absence of documentation supporting his assertion of Other Mental Health Issues, there is insufficient evidence to establish his misconduct was related to 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.   A review of the records was void of any BH diagnosis or treatment history for the applicant during service or post service, and he provide no documentation supporting his assertion of Other Mental Health Issues.  In absence of documentation supporting his assertion of Other Mental Health Issues, there is insufficient evidence to establish his misconduct was related to Other Mental Health Issues, and insufficient evidence to support an upgrade of his discharge characterization.  
 
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 discharged from active duty for Misconduct (convicted by a civil court during current term of active military service). He was discharged in the lowest enlisted grade and his service was 
characterized as under other than honorable conditions. 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 for correction of the records of the individual concerned. 
 
  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.  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 has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 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 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.  
 
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.  
 
5.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct. Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active 
military service, had been convicted by a civil court. An undesirable (UOTHC) discharge was normally considered appropriate for members separating under this provision of the regulation; however, the separation authority could issue an honorable or a general discharge if warranted by the member's overall record of service.  
 
6.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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.  
 
7.  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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge.  
 
8.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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.  
 
//NOTHING FOLLOWS//