IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230002494 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) * Self-authored letter * Character reference letters (2) 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 Docket Number AR20070006457 on 4 October 2007. 2. As a new argument, the applicant states he served his country with dignity and pride. He was nineteen years old, a long way from home, scared, and he made a terrible decision that he truly regrets to this day. His record will show that he made a mistake a week before he was set for discharge. He was afraid of going to jail and he made a terrible decision that he regrets. He pleads for the Board to make their decision based on his records, he continues to serve his community and has dedicated much of his time to helping to make the lives of others better. 3. On his DD Form 149, the applicant notes other mental health is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 24 March 1972, the applicant enlisted in the Regular Army for 3 years. The highest grade he attained was E-4 5. Court-martial charges were preferred against the applicant on 13 March 1975 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with stealing the property of a fellow Soldier, of a value of about $330.15, on or about 10 March 1975; and conspiring with another Soldier to submit a fraudulent claim against the U.S. Government for private property alleged to be stolen in the amount of $1077.60, on or about 10 March 1975. 6. A DA Form 2496-1 (Disposition Form), dated 20 March 1975, shows that an administrative hold was initiated on the applicant due to his pending special court- martial. 7. The applicant consulted with legal counsel on or about 11 April 1975 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 (AR) 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 VA, 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. 8. By legal review on 18 April 1975, the applicant s Chapter 10 separation action was found to be legally sufficient for further processing. 9. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 18 April 1975 and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 28 April 1975. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code KFS (for the good of the service). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 3 years, 1 month, and 4 days of net active service this period with 1 day of lost time. 11. The applicant provides the following (provided in entirety for the Board): a. A VA form 21-4138 that shows he submitted a VA disability compensation application. b. Character reference letters (2) that collectively attest to his dedication to his community and church, his volunteerism, and his high moral character. 12. The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 19 January 1977, the Board voted to deny relief and determined that his discharge was proper. 13. The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 4 October 2007, the Board voted to deny relief and determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 a reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or 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 24 March 1972. * Court-martial charges were preferred against the applicant on 13 March 1975 for stealing the property of a fellow Soldier, of a value of about $330.15, on or about 10 March 1975; and conspiring with another Soldier to submit a fraudulent claim against the U.S. Government for private property alleged to be stolen in the amount of $1077.60, on or about 10 March 1975. * On 11 April 1975 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 28 April 1975 with an UOTHC characterization of service. * The applicant petitioned the ADRB requesting upgrade of his UOTHC discharge. On 19 January 1977, the Board voted to deny relief and determined that his discharge was both proper and equitable. * The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 4 October 2007, the Board voted to deny relief and determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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), VA Statement in Support of Claim, self- authored statement, character references (2), 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 indicated other mental health is related to his request, noting he made a terrible mistake, and he was afraid of going to jail. 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 s Report of Medical Exam was included as part of his separation packet, completed 22 April 1975. The examination did not indicate any psychiatric or neurologic issues. No other medical or mental health records were provided. e. 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. f. 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? Unclear, the applicant did not specify when he experienced a mental health condition. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted other mental health mitigated his discharge, however he did not provide any further details. The applicant did not provide any service records or medical records that substantiated his assertion, and there is no evidence the applicant has ever experienced a mitigating mental health condition, during service, nor since his discharge. 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 letters of reference; however the Board found these 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20070006457 on 4 October 2007. 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. 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 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 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) AR20230002494 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1