IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230002777 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) character of service to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, undated * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 January 1981 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 he was constantly afraid for his life, and his mind was all messed up due to extreme racism and bias from his superiors. He went on leave for two weeks, and when he returned after two months, he was imprisoned. When released from prison, the racism and mistreatment from his superiors got worse, so he left again and did not return. His mental health was failing, causing his physical well-being to be affected. He was afraid to complain because he did not know what they might do to him. He notes post-traumatic stress syndrome (PTSD), and mental health issues are issue(s)/condition(s) related to his request. 3. The applicant enlisted in the Regular Army on 17 April 1979 for four years. 4. A DA Form 4187 (Personnel Actions) shows, effective 30 June 1980, the applicant’s unit changed his duty status from absent without leave (AWOL) to present for duty. It also shows he surrendered to military authorities. 5. On 1 July 1980, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 5 October 1979 and did remain absent until on or about 30 June 1980. 6. The applicant consulted with legal counsel on 2 July 1980 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the Uniform Code of Military Justice; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 elected not to submit a statement in his own behalf. 7. On 3 July 1980, the applicant underwent a complete mental status evaluation as part of his consideration for discharge due to his misconduct. His mental status evaluation noted, he had the mental responsibility and capacity to understand and participate in discharge proceedings. 8. On 11 December 1980, the immediate commander recommended approval of the applicant's request for discharge and the issuance of a discharge UOTHC. He noted the applicant went AWOL due to family problems and admitted he would go AWOL again if returned to duty. The applicant was counseled regarding his right to apply for a hardship discharge or compassionate reassignment; however, he declined the opportunity and instead elected to pursue a discharge. 9. On 22 December 1980, consistent with the chain of command’s recommendation, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an UOTHC Discharge Certificate. 10. The applicant was discharged on 30 January 1981, under the provisions of AR 635- 200, Chapter 10, for administrative discharge conduct triable by court-martial, with an UOTHC characterization of service in the rank/grade of private/E-1). His DD Form 214 contains the following entries: a. He completed 1 year, 1 month, and 7 days of net active service during the period covered. b. Block 18 (Remarks) shows excess leave from 3 July 1980 to 30 January 1981. c. Block 29 (Dates of Time Lost During This Period) shows lost time from 5 October 1979 to 29 June 1980. 11. Regulatory guidance in effect at the time provided discharges under the provision of AR 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 12. The applicant provided argument and/or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 13. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) characterization to honorable. The applicant contends that other mental health and PTSD were mitigating factors in his discharge. 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 into the RA on 17 April 1979. * On 1 July 1980, court-martial charges were preferred against the applicant. The DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 5 October 1979 and did remain absent until on or about 30 June 1980. * On 2 July 1980, the applicant requested discharge under AR 635-200, Chapter 10, in lieu of trail by court martial. His request was approved. * The applicant was discharged on 30 January 1981 with an Under Other Than Honorable Conditions discharge. 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), 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), though minimal data was available. No additional medical or mental health documents were provided. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant asserts that other mental health and PTSD are related to his request for an upgrade to honorable discharge. He asserts that he went on leave for 2 weeks but did not return for 2 months. He noted he was in a “constant fear for my life,” and was experiencing extreme racism and mistreatment from his superiors, which he states got worse, so he left “again and did not return.” He asserts that his mental health was failing and causing his physical health to be impacted as well. The applicant’s service and separation records are inconsistent with his account and reflect that he was AWOL for over 8 months, and do not reflect that he had more than one episode of AWOL. The applicant’s record also reflects that he had gone AWOL due to family problems and admitted he would go AWOL again if returned to duty. The applicant was counseled regarding his right to apply for a hardship discharge or compassionate reassignment, however he declined the opportunity and instead elected to pursue a discharge. 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 did complete a separation mental status exam (MSE) on 3 July 1989. The results of his MSE were unremarkable/normal. He was not found to have any significant mental illness, though he was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and was found to meet medical retention standards per AR 40-501, chapter 3. No other records were provided to substantiate his claims. 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 have “Community Health Summaries and Documents” available. A diagnosis from 2012 reflected alcoholism – in remission; however, there was no other indication of a mental health condition. No additional medical records were provided to substantiate his assertions. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, outside of self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends he went AWOL due to racism and mistreatment, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 PTSD and other mental health. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts his mental health declined during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD and other mental health, citing mistreatment and experiences of racism, though no details were given about these experiences nor his mental health symptoms. In addition, there is no evidence, beyond self-report, that the applicant was experiencing a mitigating condition on active service. There was no evidence provided that supports he has ever been diagnosed with any mitigating mental health condition. The applicant did go AWOL, which can be a sequalae to PTSD and some mental health conditions, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends he was experiencing PTSD and other mental health concerns that mitigated his misconduct, and per Liberal Consideration, his contention is sufficient for 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 to include deployment, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of post-service achievements or letters of reference 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 PTSD. Based on a preponderance of the 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 :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 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, U.S. Code, Section 1556, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (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 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. 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 (DRB) 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 (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. 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 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) AR20230002777 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1