IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230000746 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), with self-authored statement 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 Dockets Number AR20100025778 on 21 April 2011 and Docket Number AR20190006579 on 22 July 2019, respectively. 2. As new justification for consideration, the applicant states his discharge should be upgraded because he was incorrectly and unjustly separated because of several factors that were beyond his control. a. He suffered from a sleep disorder condition which affected both his ability to fall asleep and to wake up. Although he reported this issue, it was ignored and intentionally not reported to higher authorities by his unit commanders. He was also denied time off to seek medical attention to address his condition. His sleep disorder became uncontrollable and resulted in several unjustified incidents. b. He also states he was subjected to racism when his roommate falsely accused him of stealing his ring. Due to the extremely high level of racism in the unit, his roommate's word was accepted, and his innocence was ignored. c. He was also falsely arrested for a crime that he had no knowledge of based upon guilt by association. There was no victim statement, witness statement, or substantial evidence of his involvement in the alleged civil act of misconduct. 3. The applicant enlisted in the Regular Army on 17 June 1980. Upon completion of initial entry training, he was assigned to a unit at Fort Ord, CA. 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the reasons shown: * 7 May 1981 – failed to go at the time prescribed to his appointed place of duty * 11 August 1981 – willfully disobeyed a lawful order from a superior noncommissioned officer (NCO) on two occasions * 11 September 1981 – was derelict in the performance of his duties; his punishment included reduction to E-1 * 11 December 1981 – stole a gold ring valued at about $430.00 from another Soldier * 6 February 1982 – failed to go at the time prescribed to his appointed place of duty * 19 March 1982 – failed to go at the time prescribed to his appointed place of duty 5. On 11 January 1982, it was recommended that the applicant be required to appear before a board of officers convened under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the purpose of determining whether he should be discharged before the expiration of his term of service. The specific reasons for recommending his discharge were his frequent incidents of a discreditable nature with civil or military authorities. 6. On 1 February 1982, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The applicant acknowledged receipt of the notification the same day. 7. On 11 March 1982, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him, the rights available to him, and the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected to appear before an administrative separation board, and to have consulting counsel. He elected not to submit a statement in his own behalf. 8. On 30 March 1982, the applicant submitted a revised election of rights wherein he elected to waive his rights to consideration of his case by an administrative separation board, to appear in person before the board, and to have consulting counsel. He indicated he would submit a statement in his own behalf; however, there is no statement filed in his available record. 9. The applicant's intermediate commanders recommended approval of his separation and waiver of a rehabilitative transfer to another unit. 10. The separation authority approved the recommended separation under the provisions of Army Regulation 635-200, paragraph 14-33b(1) and directed that he be discharged with a service characterization of UOTHC. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 16 April 1982, under the provisions of Army Regulation 635-200, paragraph 14-33a(3), due to Misconduct-Frequent Incidents of a Discreditable Nature with Civil or Military Authorities. He was credited with 1 year and 10 months of net active service this period. His service was characterized as UOTHC. 12. The available record is void and the applicant did not provide any evidence showing he was a victim of racism or diagnosed with any medical condition during his period of service. 13. The applicant petitioned the ABCMR for relief on 6 October 2010 based upon his contentions that he was promised his discharge would be automatically upgraded six months after his separation and that he had been a model citizen since his discharge. On 25 April 2011, the ABCMR considered his application under procedures established by the Secretary of the Army and denied his request. 14. On 19 April 2019, the applicant petitioned the ABCMR for reconsideration of his request for relief because it was based upon minor disciplinary infractions for tardiness in a two-year period. On 19 August 2019, the applicant was informed the ABCMR had reconsidered his application and denied his request. 15. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 16. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting an upgrade of his 16 April 1982 discharge characterized as under other than honorable conditions. He states: “I believe that the record is made incorrectly and unjust because at that time [of] the illegitimate accused misconduct was in error because I suffered from a valid sleeping disorder condition which effected my going to sleep and severe difficulty in waking up. I physically reported this issue which was ignored and intentionally unreported.” c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows that he entered the Regular Army on 17 June 1980 and was discharged 16 April 1982 under authority provided in paragraph 14-33b(1) of AR 635-200, Personnel Separations – Enlisted Personnel (1 May 1980): Frequent incidents of discreditable nature with civil or military authorities.” d. This request was previously denied in full by the ABCMR on 21 April 2011 (AR20100025778) and again on 22 July 2019 (AR20190006579. Rather than repeat their findings here, the board is referred to the record of proceedings for those cases. This review will concentrate on the new evidence submitted by the applicant. e. No new evidence was submitted with this application. f. No medical documentation was submitted with the application. Because the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. g. The ROP for AR20190006579 lists the offenses for which the applicant received Article 15’s under the UCMJ: • on 7 May 1981, for failure to go at the prescribed time to his appointed place of duty, on or about 5 May 1981 • on 11 August 1981, for willfully disobeying a lawful order, on or about 6 August 1981 • on 11 September 1981, for being derelict in the performance of his duties, on or about 28 August 1981 • on 11 December 1981, for stealing the property of another Soldier, on or about 8 October 1981 • on 6 February 1982, for failure to go at the time prescribed to his appointed place of duty, on or about 4 February 1982 • on 19 March 1982, for failure to go at the time prescribed to his appointed place of duty, on or about 15 March 1982 h. Review of the applicant’s records in JLV shows he has medical conditions listed on his medical problem list. The only conditions listed placed on his problem list are unsheltered homeless on 12 August 2022 and problems related to other legal circumstances on 3 April 2020. He has no VA service-connected disability ratings, and he receives humanitarian emergency access to the VA as a non-veteran. i. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. j. It is the opinion of the ARBA medical advisor that a discharge upgrade remains unwarranted. 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 no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. The Board noted, the applicant provided insufficient evidence of post-service achievements or letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. 2. The Board agreed there is no evidence supporting the applicant was experiencing mental health condition while on active service, and JLV is void of any history of VA medical treatment. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year and 10 months of net active service this period. Based on a preponderance of evidence, the Board determined there is insufficient evidence to amend the previous Board’s decision and that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of behavioral health concerns or treatment of racism during his period of service... ? 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 AR20100025778 on 21 April 2011 and Docket Number AR20190006579 on 22 July 2019. 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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the 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. 2. 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. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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 Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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. 5. 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// ABCMR Record of Proceedings (cont) AR20230000746 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1