IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230001650 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Standard Form 88 (Report of Medical Examination) * Personnel Qualification Record * Theological documents * Civilian education documents * Certificates of achievement and completion 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 applicants states at the time of his discharge he had a drug addiction, which caused him to go absent without leave (AWOL). He was not in the state of mind to make an intelligent decision. His state of mind was not considered nor was there any concern for his circumstances. There were a great number of Soldiers being processed at the time and they were all encouraged to agree to this type of discharge. He believes that if concern was shown for any emotional or mental circumstances, rehabilitation may have been an option. He was a model Soldier who loved the military until he became addicted. There are many days that he wishes he had another chance to right this wrong in his life. He is an ordained minister, and he pastors a church; his life is dedicated to helping everyone he can. An upgrade in discharge will give him another tool to do just that, especially to those that are still in the military. 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 13 November 1985, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 13B (Cannon Crewmember). 5. On 29 June 1987, the applicant was reported as AWOL and remained absent in a desertion status until he was apprehended by civilian authorities on 16 March 1988. 6. On 17 March 1988, the applicant voluntarily declined a separation medical examination. 7. Court-martial charges were preferred against the applicant on 18 March 1988, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with going AWOL from on or about 29 June 1987 until on or about 16 March 1988. 8. The applicant consulted with legal counsel 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 declined to submit a statement in his own behalf; however, his personnel control facility interview, states he went AWOL because his grandmother didn t have good health and he wanted to be stationed closer to home. Additionally, he stated that he went through his chain of command but didn t get anything accomplished. 9. On 30 March 1988, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an UOTHC discharge. 10. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 27 April 1988 and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 31 May 1988. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 10 months and 2 days of net active service this period with 260 days of lost time. 12. The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 23 March 1998, the Board voted to deny relief and determined that his discharge was both proper and equitable. 13. The applicant provides a report of medical examination, dated 29 August 1985, and miscellaneous documents that detail his post-service religious, educational, and professional accomplishments. These documents are provided in their entirety for the Board s review. 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. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. The applicant indicated other mental health is related to his request. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the Regular Army on 13 November 1985. * On 29 June 1987, the applicant was reported as AWOL and remained absent in a desertion status until he was apprehended by civilian authorities on 16 March 1988. * Court-martial charges were preferred against the applicant on 18 March 1988, for going AWOL from on or about 29 June 1987 until on or about 16 March 1988. * The applicant voluntarily requested discharge under AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial. The request was approved. * The applicant was discharged on 31 May 1988 with an UOTHC characterization of service. * The applicant petitioned the ADRB requesting upgrade of his UOTHC discharge. On 23 March 1998, the Board voted to deny relief and determined that his discharge was both proper and equitable. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant s completed DD Form 149, his ABCMR Record of Proceedings (ROP), Report of Medical Examination, Personnel Qualification Record, Theological documents, civilian education documents, certificates of achievement and completion, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that drug addiction mitigated his discharge, and he believes that if concern was shown for any emotional or mental circumstances, rehabilitation may have been an option and not "just discharge." The applicant did not choose to submit a letter on his behalf at the time of his separation but during his personnel control facility interview, he stated he went AWOL because his grandmother didn t have good health and he wanted to be stationed closer to home. He had reportedly gone through his chain of command but didn t get anything accomplished. e. The applicant s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). However, the applicant supplied his enlistment Report of Medical Exam which did not indicate any psychiatric or neurologic issues. Separation documents state that on 17 March 1988, the applicant voluntarily declined a separation medical examination. No other medical or mental health records were provided. f. Per the applicant s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Through review of JLV, this applicant did not have any Community Health Summaries and Documents available for review either. No other medical records were provided. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. 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 asserts other mental health is related to his request for an upgrade to his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends the condition was present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted other mental health mitigated his discharge. More specifically, the applicant asserted that addiction was the condition he believes mitigates his discharge. First and foremost, any substance use disorder, as a standalone diagnosis, is not currently a mitigating condition. Second, the applicant did not provide any service records or medical records that substantiated his assertion that any mental health condition, to include a substance use disorder, was present during his time in service. However, per Liberal Consideration guidance, the applicant s assertion is sufficient to warrant the board s consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA BH Advisor. The applicant provided evidence of post-service achievements; however the Board found this evidence insufficient in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined 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. 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 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. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. 5. 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. 6. 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. 7. 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) AR20230001650 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1