IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004332 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 293 (Application for the Review of Discharge) * Self-authored letter 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 AC84-02218 on 27 March 1985. 2. The applicant states: a. His childhood was a life of fear and uncertainty. His dad was an alcoholic and a terrible person to live with. He joined the Army at age 18, to become a Soldier and to have a better life. He was honorably discharged after serving over three years. b. After his discharge, he missed being in the Army, so he reenlisted. After bootcamp, he went home on leave and realized he contracted a sexually transmitted disease (STD). He went to a doctor, and he began treatment with a series of shots. He did not want to go back to base with this condition, so he went absent without leave (AWOL) to finish the treatments. Military police picked him up and took him back, he informed them that he had a STD. However, he was put in the stockade. After his court- martial, he was asked if he wanted to stay in the Army or get discharged. He wanted to remain in the Army. c. He was transferred to Germany, where he began to have symptoms again. He was very concerned and felt he needed more treatments. He went AWOL again for one day, thinking a doctor in the city could help. The base commander put him in the hospital for examination. He was given treatment for the STD; however, the symptoms continued, and he was hindered in the performance of his duties. d. He received an undesirable discharge which he thinks was unfair. After his discharge, he was able to locate a doctor who treated him with a correct series of treatment and all the symptoms completely went away. He regrets that he did not receive the proper treatment while in the Army. 3. Having had prior honorable service in the Regular Army, the applicant enlisted in the Regular Army, on 21 April 1963. The highest grade he attained was E-3. 4. On 24 May 1963 the applicant was reported as AWOL and remained absent until he returned to military authorities on 3 December 1963. 5. Before a special court-martial at Fort Ord, CA on 17 December 1963, the applicant was found guilty of one specification of going AWOL, from on or about 24 May 1963, until on or about 3 December 1963. The court sentenced him to confinement at hard labor for six months, forfeiture of $73.00 pay per month for six months, and reduction to the grade of E-1. The sentence was approved on 18 December 1963. 6. On 8 May 1964 the applicant was reported as AWOL a second time and remained absent until he returned to military authorities on 7 July 1964. 7. Before a special court-martial at Fort Dix, NJ on 19 August 1964, the applicant was found guilty of one specification of going AWOL, from on or about 8 May 1964 until on or about 7 July 1964. The court sentenced him to confinement at hard labor for six months, and forfeiture of $50.00 pay per month for six months. The sentence was approved on 20 August 1964; however, only so much of the sentence that provided for confinement at hard labor for six months and forfeiture of $25.00 pay per month for six months was approved. 8. DA Form 8-275-2 (Clinical Record) shows the applicant was seen by a physician on 23 November 1964. The attending physician diagnosed the applicant with a STD (syphilis). 9. On 2 January 1965, the applicant was reported as AWOL a third time, and remained absent until he returned to military authorities on 4 January 1965. 10. Court-martial charges were preferred against the applicant on 10 January 1965, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with one specification of going AWOL, from on or about 2 January 1965, until on or about 4 January 1965. 11. The applicant appeared before a summary court-martial at Grafenwöhr, Germany; however, the relevant court-martial documents are not available for review. 12. Clinical record shows the applicant was seen by a physician on 18 February 1965. The attending physician diagnosed the applicant with an STD and a passive aggressive reaction with hypochondriacal tendencies, manifested by stubborn insistent attitude toward multiple minor symptoms and excessive drinking. 13. On 4 March 1965, the applicant was reported as AWOL a fourth time, and remained absent until he returned to military authorities that same day. 14. On 4 March 1965, the applicant accepted non-judicial punishment (NJP) under Article 15 of the UCMJ, for going AWOL for one day, on or about 4 March 1965. His punishment included forfeiture of $28.00 pay for one month, and 14 days extra duty and restriction. 15. On 2 April 1965, the applicant was reported as AWOL a fifth time, and remained absent until he returned to military authorities that same day. 16. Court-martial charges were preferred against the applicant on 5 April 1965, for violations of the UCMJ. His charge sheet shows he was charged with one specification of going AWOL for one day, on or about 2 April 1965. 17. The applicant appeared before a summary court-martial at Friedberg, Germany; however, the relevant court-martial documents are not available for review. 18. On 6 May 1965, the applicant underwent a psychiatric evaluation. He was diagnosed as passive aggressive and hypochondriacal. The attending physician noted the applicant’s insistence on sickness and demand for proper treatment is releasing large amounts of hostility as well as giving himself a rationalization for poor performance. It was unlikely that this attitude which seems deep seated and fixed, will change during his Army career and separation seemed most appropriate. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 19. On 10 May 1965, the applicant was reported as AWOL a sixth time, and remained absent until he returned to military authorities that same day. 20. On 11 May 1965, the applicant accepted NJP under Article 15 of the UCMJ, for going AWOL for one day, on or about 10 May 1965. His punishment included forfeiture of $28.00 pay for one month, and 14 days extra duty restriction. 21. The applicant's immediate commander notified him on 13 May 1965, that he was being recommended for discharge under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character), by reason of unfitness. As the specific reason, the commander cited the applicant’s frequent incidents of a discreditable nature. 22. The applicant acknowledged receipt of the separation notification. He declined his right to consult with counsel, nor to appear before a board of officers. He elected not to make any statements in his own behalf. 23. The applicant's immediate commander recommended the applicant's separation from service, under the provisions of Army Regulation 635-208, for unfitness. 24. By legal review on 4 June 1965, the applicant’s separation action was found to be legally sufficient for further processing. 25. Consistent with the chain of command’s recommendations, the separation authority approved the recommended separation on 11 June 1965, under the provisions of Army Regulation 635-208, and directed the issuance of an undesirable discharge certificate. 26. The applicant was discharged on 28 June 1965. His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-208, with Separation Program Number 28B (unfitness) and Reentry Codes 3, 3B, and 4. His service was characterized as UOTHC. He completed 1 year and 28 days of net active service, with 406 days of lost time. 27. The applicant petitioned the Army Discharge Review Board requesting upgrade of his undesirable discharge. On 7 September 1965, the Board voted to deny relief and determined that his discharge was proper. 28. The applicant petitioned the ABCMR requesting upgrade of his undesirable discharge. On 27 March 1985, the Board voted to deny relief and determined that the applicant failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 29. 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. 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 and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post- service achievements or character letters of support that could attest to his honorable conduct which might have mitigated the discharge characterization. 2. The Board recognized the applicant had a prior period of honorable service but determined his multiple instance of AWOL during his second enlistment of 1 year and 28 days of net active service, with 406 days of lost time could not be mitigated. Furthermore, 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AC84-02218 on 27 March 1985. 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. 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. 2. 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. 3. Army Regulation 635-208, in effect at the time, set forth the policy for administrative separation for unfitness. Paragraph 3 provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or honorable discharge. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Navy Records (BCM/NR) 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) AR20230004332 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1