IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230001126 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 that from a very young age, he wanted to be in the Army and serve his country. He made a great number of bad decisions at that time of his life but was proud when he entered the service. When he was stationed in Germany, he received troubling news from home that made his decisions very difficult for him at such a young age. At the time he was going through mental problems, his mother was dying of cancer and was an alcoholic. When she passed, he lost control of his mental state and left to be with his family. He was unable to pull himself back to where he would be a good Soldier. He regrets that time of his life and wishes he could relive it to be a better person, but at the time he thought he was doing the right thing by helping his family. For years he has lived with the guilt of not fulfilling his duty honorably. He just wants to have a little pride put back in his life as he gets older. 3. On his DD Form 149, the applicant notes other mental health as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 22 February 1971, the applicant enlisted in the Regular Army for 2 years. Upon completion of training, he was awarded military occupational specialty 71F (Postal Clerk). 5. On 21 June 1972, the applicant was reported as absent without leave (AWOL) and remained absent in a desertion status until he surrendered to military authorities on 21 September 1972. 6. Before a special court-martial at Fort Knox, KY on 19 October 1972, the applicant was found guilty of going AWOL from on or about 21 June 1972, until on or about 21 September 1972. The court sentenced him to restriction for one month and extra duty for two months. The sentence was approved on 26 October 1972. 7. On 5 November 1972, the applicant was again, reported as AWOL and remained absent in a desertion status until he surrendered to military authorities on 1 April 1974. 8. On 9 April 1974, the applicant underwent a separation examination. He was medically cleared for separation. 9. Court-martial charges were preferred against the applicant on 11 April 1974 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 5 November 1972 until on or about 1 April 1974. 10. The applicant consulted with legal counsel on 13 April 1974, 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 bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 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 by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He submitted a statement in his own behalf stating that he enlisted in the Army because his mother wanted him to and his attitude for the Army was poor. He had to stay in the company area about every weekend that he was there. His attitude for the Army stayed the same until his mother died and then he felt his obligation to her was over. All he wants is a discharge so that he can start over again. If disapproved, he will find himself in the same position and he will keep going AWOL. 11. On 16 April 1974, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an Undesirable Discharge Certificate. 12. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 17 April 1974, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 1 May 1974. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 6 months, and 8 days of net active service this period with 605 days of lost time. 14. 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 Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. 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. 16. On 10 March 2023, the ABCMR staff requested that the applicant provide medical documents to support his claim of mental health issues as a contributing factor in the circumstances that resulted in his discharge. He did not respond. 17. MEDICAL REVIEW: a. Background: The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge to general. 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: * Applicant enlisted in the RA on 22 February 1971. * On 21 June 1972, he was reported as AWOL and remained in desertion status until he surrendered to military authorities on 21 September 1972. He was subsequently found guilty of AWOL for those dates before a special court-martial. * On 5 November 1972, he was again reported AWOL and remained in desertion status until he surrendered to military authorities on 1 April 1974. * He was medically cleared for separation on 9 April 1974. * Court-martial charges were preferred for the period of AWOL from o/a 5 November 1972 to o/a 1 April 1974. He voluntary requested discharge under AR 635-200 Chapter 10. * A personal statement in essence indicates he joined the Army because his mother wanted him to, and upon her death he felt his obligation to her was over. If not discharged, he will keep going AWOL. * Applicant was discharged 1 May 1974, per DD214 characterized as UOTHC via AR 635-200 Chapter 10. c. Review of Available Records Including Medical: All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references other mental health conditions associated with application, with narrative suggestive of grief associated with the health and ultimately the death of his mother, and the need to help take care of family following mother’s death. Report of Medical Examination dated 9 April 1974 was unremarkable and noted he was qualified for separation with no psychiatric profile indicated (S1). The case files contain no additional medical documents in support of his application. d. AHLTA/GENESIS The Army electronic medical records, AHLTA and GENESIS, were not reviewed; they were not existing EMR at the applicant’s time of service. A query of HAIMS also did not return any records for this applicant. JLV. e. Available VA records were reviewed via JLV. The applicant has no service- connected conditions listed and his record is void of entries. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes, per applicant’s assertion only. (2) Did the condition exist or experience occur during military service? Yes. The applicant has in essence asserted impaired functioning associated with the death of his mother. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to mental health factors at the time of his offense/discharge. His application contains self-described symptoms consistent with grief or bereavement associated with health issues and death of mother. He has provided no medical records (and no such records were located) indicative of a more significant psychiatric diagnosis. Even if accepting the assertion that grief/bereavement was present at the time of misconduct, this is not considered a potentially mitigating condition and would not offer any psychiatric mitigation of the AWOL misconduct leading to discharge. The Board may wish to consider relief given the almost 50 years since his discharge and the non-violent nature of his offense. 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 would mitigate the applicant misconduct except for assertion that grief/bereavement was present at the time of misconduct, this is not considered a potentially mitigating condition and would not offer any psychiatric mitigation of the AWOL misconduct leading to discharge. The Board noted the applicant provided no post-service achievements or letters of support that could attest to his honorable conduct over the past 50 years since his discharge. 2. The Board determined 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. 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 mental health issues as a mitigation for a discharge upgrade. 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 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. 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 three 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 three-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 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy 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. 5. 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 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. 6. 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, 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) AR20230001126 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1