IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230003682 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable 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 he has been a model successful person since his mistake. It was a mistake made by a 20-year-old man dealing with his wife’s drug addiction. He reached out to his superiors and was told they couldn’t help him. He thought he was doing the right thing by choosing his wife and child over a military career. He tried to balance the two but was too immature. On his DD Form 149, the applicant notes other mental health is related to his request. 3. The applicant enlisted in the Regular Army on 12 April 1983 for three years. His military occupational specialty was 13B (Cannon Crewman). 4. He was absent without leave (AWOL) on 16 August 1984; dropped from the rolls on 15 September 1984; apprehended by civilian authorities on 27 December 1984 and returned to military control on the same date. 5. On 4 January 1985, the applicant did not desire a medical examination. 6. Court-martial charges were preferred against the applicant on 9 January 1985 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL on or about 16 August 1984 until on or about 27 December 1984. 7. The applicant consulted with legal counsel on 10 January 1985 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 UOTHC discharge; the procedures and rights that were available to him. a. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision 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. 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 and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He elected not to submit statements in his own behalf. 8. On 11 January 1985, the applicant’s commander recommended approval of his request for discharge in lieu of trial by court martial. Based on the applicant’s previous record, punishment could be expected to have a minimal rehabilitative effect and he believed a discharge was in the best interest of all concerned. There did not appear to be any reasonable ground to believe the applicant is, or was at the time of his misconduct, mentally defective, deranged, or abnormal and recommend an UOTHC discharge. The chain of commanded recommended an UOTHC discharge. The recommendation was legally sufficient. 9. The separation authority approved the applicant’s request for discharge on 16 January 1985, with the issuance of an UOTHC discharge and reduction to the lowest enlisted grade. 10. The applicant was discharged on 8 February 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial. He was assigned Separation Code KFS with Reentry Code 3B, 3. His service was characterized as UOTHC. He completed 1 year, 5 months, and 16 days of net active service. He lost time from 16 August 1984 to 26 December 1984. 11. 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 Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. 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. 13. 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 as a mitigating factor. 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 Regular Army on 12 April 1983. * Court-martial charges were preferred against the applicant on 9 January 1985 for going AWOL on or about 16 August 1984 until on or about 27 December 1984. * On 10 January 1985, 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 8 February 1985 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). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant noted that other mental health was related to his request for upgrade. He stated that he was dealing with his wife’s drug addiction and had reached out for support from his superiors but was told they could not help. He noted that he thought he was doing the right thing by choosing his wife and child over the military and thought he could balance the two, but was “too immature.” 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 contain his service treatment records (STR), though there was no indication of any mental health symptoms or conditions. His service records also contained medical data. The applicant denied any psychiatric history during his enlistment physical. Also, on 4 January 1985, the applicant indicated that he did not desire a medical examination. No other documentation was provided to substantiate his assertion. f. Per the applicant’s VA EHR, he is not service connected, he holds no mental health disorder diagnose, and he has had no engagement with mental health through 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, though there was no record of a mental health diagnoses, nor mental health encounters. 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 asserted other mental health, though he described this as him being immature and trying to “deal” with a wife with a drug addiction. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the potentially mitigating condition was during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to being young/immature and “dealing with a wife’s drug addiction.” Although he noted other mental health was related to his request, the applicant did not specify any specific condition. Also, there is insufficient evidence to support he was ever diagnosed with a mental health disorder. And lastly, he noted lack of maturity, however lack of maturity does not constitute a mitigating condition as all soldiers are expected to follow military customs, courtesies, regulations, policies and laws, and the uniform code of conduct does not apply differently based on age. The applicant did go AWOL, and there can be a nexus between this behavior and some mental health conditions, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends other mental health mitigated his misconduct, and per Liberal Consideration, his contention is sufficient to warrant the board’s consideration. 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. The Board noted, the medical opine found there is insufficient evidence to support he was ever diagnosed with a mental health disorder. As indicated by the applicant that he lacked maturity, however lack of maturity does not constitute a mitigating condition as all soldiers are expected to follow military customs, courtesies, regulations, policies and laws, and the uniform code of conduct does not apply differently based on age. 2. The Board determined there is insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. 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 to an honorable discharge. 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 (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, USC, 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 Soldiers 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; 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003682 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1