IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002458 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions separation to a general discharge under honorable conditions * Permission to appear personally before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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's states, in effect, he was a good Soldier, but he went absent without leave (AWOL) after being subjected to extreme retaliation and constant harassment. As a result of defending himself from a warrant officer's attacks, his command referred court-martial charges against him, and the court found in his favor. On his applications to the Board, the applicant has checked blocks for PTSD (post-traumatic stress disorder) and other mental health conditions; however, he offers no further documentation to support those conditions. 3. According to the National Personnel Records Center (NPRC), they have no service records with the applicant's social security number. a. The applicant provides a copy of his DD Form 214, which reflects the following: (1) On 29 August 1978, the applicant enlisted into the Regular Army; upon completion of initial entry training, the Army awarded him military occupational specialty 62B (Construction Equipment Repairer). On 27 November 1979, the Army separated him under other than honorable conditions; he completed 1 year and 18 days of creditable net active-duty service. (2) The DD Form 214 lists the following additional information: * Item 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – Private (PV1)/E-1 * Item 7 (Last Duty Assignment and Major Command) – U.S. Army Personnel Control Facility, XVIII Airborne Corps, U.S. Army Forces Command * Item 12h (Record of Service – Effective Date of Pay Grade) – 23 October 1979 * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Two marksmanship qualification badges * Item 18 (Remarks) – Excess taken from 2 November 1979 through 27 November 1979 * Item 25 (Separation Authority) – Chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * Item 29 (Date of Time Lost During this Period) – 19790604 through 19790618 and 19790821 through 19791016 b. Additionally, the Army Review Boards Agency Case Tracking System (ACTS) includes an electronic record confirming the applicant petitioned the ADRB for an upgrade, on 8 August 1994, and, on 30 October 1996, the ADRB voted to deny relief. 4. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The applicant requests the upgrade of his under other than honorable conditions discharge. a. The absence of the applicant's separation packet means we are unable to determine the complete circumstances that led to his discharge; however, given the availability of the applicant’s DD Form 214, which lists the applicant’s regulatory separation authority, the Board presumes the applicant's leadership completed his separation properly. (1) AR 15-185 states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., an applicant’s service records and official Army documents are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning, based on an applicant's documentary proof, the Board is able to find there is a greater than 50 percent chance that the applicant's claims are true. (2) This presumption notwithstanding, the version of the military personnel records regulation in effect at the time, AR 640-10 (Individual Military Personnel Records), required case files for approved separation actions to be maintained in the affected Soldiers' military personnel file when the result was an under other than honorable conditions discharge. b. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial (MCM) then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a punitive discharge. 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions including PTSD 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 29 August 1978; 2) According to the National Personnel Records Center (NPRC), they have no service records with the applicant's social security number; 3) The applicant was discharged on 27 November 1979, Chapter 10-Conduct Triable by Court Martial with a character of service of UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s available military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy medical documentation was provided. d. On his application, the applicant noted mental health conditions including PTSD are related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence he reported mental health conditions during his military service. A review of JLV was void of medical documentation, and he does not receive any service-connected disability. The applicant did not provide any civilian medical documentation for review. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence surrounding the nature of the events which led the to the applicant’s discharge. Therefore, at this time, there is insufficient evidence to provide an opine on the possible mitigation of his discharge based on a mental health condition or experience. In addition, there is insufficient evidence the applicant was diagnosed with a mental health condition including PTSD prior to his discharge or after. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? N/A, it is the opinion of the Agency BH Advisor that there is insufficient evidence surrounding the nature of the events which led the to the applicant’s discharge. Therefore, at this time, there is insufficient evidence to provide an opine on the possible mitigation of his discharge based on a mental health condition or experience. In addition, there is insufficient evidence beyond self-report that the applicant was diagnosed with a mental health condition including PTSD prior to his discharge or after. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A 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 the medical advisory the Board concurred with the advising official finding insufficient evidence to provide an opine on the possible mitigation of his discharge based on a mental health condition or experience. In addition, there is insufficient evidence the applicant was diagnosed with a mental health condition including PTSD prior to his discharge or after. 2. The applicant provided no post service achievements or character letters of support for the Board to weigh as a clemency determination. The Board agreed 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 to a general under honorable conditions discharge. Therefore, the Board denied relief. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation 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 behavior health issues for a discharge upgrade. 4. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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, USC, 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, United States Code, section 1556 (Ex Parte Communications Prohibited) 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. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. b. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. (1) Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to give the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. (2) The Soldier made his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 4. The Manual for Courts-Martial, United States, in effect at the time, showed the maximum punishments for violations of Article 86 (AWOL for more than 30 days) included a punitive discharge. 5. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – Approved for Discharge from Service Under Other than Honorable Conditions) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 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 PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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 former Soldier'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. 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. 9. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002458 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1