IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004312 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: y DD Form 149 (Application for Correction of Military Record), 10 January 2023 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, in effect, his service was good until he went home on leave to get married, and his girlfriend left him. He was not in his right mind. 3. The applicant enlisted in the Regular Army on 5 August 1980, for a period of 4 years. The highest rank he obtained was specialist (SPC)/E-4 with a date of rank of 1 January 1982. 4. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Conduct of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment under Article 85, of the UCMJ for failure to go to his prescribed place of duty. The punishment imposed was reduction to the grade of E-3 and 14 days of restriction. 5. An Absent Without Leave (AWOL) – Deserter Verification Sheet shows on 25 August 1983 he went AWOL and was dropped from rolls on 29 September 1983. It additionally states he was apprehended on 15 January 1985. 6. A DA Form 458 (Charge Sheet) shows he was being recommended for a trial by special court-martial. He was charged with violation of the UCMJ Article 86, for going AWOL on or about 25 August 1983 until on or about 15 January 1985. 7. On 15 January 1985, after consulting with counsel, the applicant executed a written request for discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged his understanding of the following in his request: a. He understood that he could request discharge for the good of the service because the charges preferred against him could result in the imposition of a punitive discharge. b. Prior to completing this request, he was afforded the opportunity to consult with appointed counsel, who fully advised him of the basis for his contemplated trial by court- martial, the maximum punishment authorized under the UCMJ, of the possible effects of an UOTHC character of service, and of the procedures and rights available to him. c. He acknowledged that he was making this request of his own free will and had not been subjected to any coercion by any person. Although counsel furnished him legal advice, this decision was his own. Additionally, he elected not to submit a statement on his own behalf. 8. On 18 January 1985, the applicant's immediate commander, recommended approval of his requested separation under AR 635-200, Chapter 10. He further recommended that an Other Than Honorable Conditions Discharge Certificate be issued. 9. On 21 January 1985, the applicant's intermediate commander also recommended approval of the applicant's requested separation under AR 635-200, Chapter 10, with an UOTHC characterization of service. 10. On 26 January 1985, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed his reduction to the lowest enlisted grade. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 21 February 1985, under the provisions of AR 635-200, Chapter 10, by reason of For the Good of the Service- in Lieu of Court-Martial, in the grade of E-1. His service was characterized as UOTHC. He received separation code "KFS" and reentry code RE-3, 3B, and 3C. He completed 3 years, 1 month, and 27 days of net active service. He had time lost from 25 August 1983 to 14 January 1985. 12. There is no indication the applicant applied to the Army Discharge Review Board within that Boards 15-year statute of limitations. 13. Discharges under the provisions of AR 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, from the Soldier, to avoid a trial by court- martial. An UOTHC character of service is normally considered proper. 14. 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. 15. 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 a mental health condition 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 was enlisted in the Regular Army on 5 August 1980; 2) The applicant was found AWOL on 25 August 1983 till he was apprehended on 15 January 1985; 5) The applicant was discharged on 21 February 1985, Chapter 10, by reason of For the Good of the Service. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and available military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant noted other mental health conditions as a contributing and mitigating factor in the circumstances that resulted in his separation. He also asserts “he was not in his right mind” as the result of marital discord. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any behavioral health documentation, and the applicant receives no service- connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing a mental health condition that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a mental health condition while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The applicant did go AWOL, which can be a sequalae to 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 a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for 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 and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The medical opine found no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any behavioral health documentation. 2. The Board noted, the applicant provided no post service achievements of character letters of support that could attest to his honorable conduct for the Board to weigh as a clemency determination. 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. 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, 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. Army Regulation 635-200, in effect at the time, provided guidance for the administrative separation of enlisted personnel: a. Chapter 10 of this regulation provided a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts- Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred against the member, or, until final action on the case by the court-martial convening authority. A member who is-under a suspended sentence of a punitive discharge may also submit a request for discharge for the good of the Service. An UOTHC discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a general discharge certificate if such is merited by the member's overall record during the current enlistment. b. An honorable discharge is a separation with honor. The issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. An under honorable conditions (general), discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and the good of the service. 3. 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 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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) AR20230004312 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1