IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004768 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement, 30 December 2022 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 is a homeless Army Veteran who has debilitating physical issues and other mental health issues/condition. He applied for an upgrade to his characterization of service in 2010, but due to a lack of stable housing never received any information on a decision made regarding his request. 3. The applicant enlisted in the Regular Army on 26 November 1980. The highest rank/grade he held was private first class (PFC)/E-3. 4. On 1 February 1982, he accepted non-judicial punishment (NJP) under Article 15, of the Uniform Code of Military Justice (UCMJ), for on or about 19 January1982, having received a lawful order willfully disobey the same. His punishment was forfeiture of $50.00 pay per month for one month suspended for 90 days, and 14 days extra duty. 5. On 6 January 1983, he accepted NJP under Article 15, of the UCMJ, for two specifications on or about 3 January 1983 and on or about 5 January 1983, failure to go to his appointed place of duty. His punishment was reduction to Private/E-2 (PV2); restriction and extra duty for 30 days. 6. On 11 August 1983, he accepted NJP under Article 15, of the UCMJ, for on or about 2 August 1983, failure to go to his appointed place of duty. His punishment was reduction to Private/E-1 (PV1); forfeiture of $130.00 pay, and restriction and extra duty for 14 days. 7. On 20 September 1983, he accepted NJP under Article 15, of the UCMJ, for: a. On or about 24 August 1983, for behaving with disrespect towards his superior commissioned officer and fail to obey a lawful order. b. On or about 26 August 1983, for failure to obey a lawful order. c. On or about 29 August 1983, for failure to go to his appointed place of duty. d. His punishment was forfeiture of $286.00 pay for two months, of which $100.00 per month was suspended until 20 March 1984, and extra duty and restriction for 45 days. 8. On 16 November 1983, the applicant's commander notified the applicant of his intent to initiate action to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14 (Separation for Misconduct), paragraph 14-12b, for a pattern of misconduct. a. He acknowledged receipt of his commander’s notification of separation. b. He was advised by his consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct under AR 635-200, Chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. (1) He understood he may expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him and as a result, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. (2) He understood that if he received a discharge certificate/character of service which was less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge would be upgraded. (3) He requested consideration of his case by and personal appearance before a board of officers. (4) He elected not to submit a statement on his own behalf. 9. On 17 November 1983, the applicant completed a medical examination and 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 capacity to understand and participate in the proceedings. 10. On 25 November 1983, his immediate commander formally recommended his separation from the service, under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct. He noted, the applicant has been punished repeatedly about his conduct unbecoming a Soldier and disobeying lawful orders by his superiors and should be considered for elimination. 11. On 1 December 1983, his intermediate commander forwarded the applicant’s request to have his case be presented before a board of officers to the separation authority. 12. On 14 December 1983, he accepted NJP under Article 15, of the UCMJ, for on or about 2 December 1983, for wrongfully possessing some amount of marihuana. His punishment was forfeiture of $268.00 pay per month for two months, extra duty, and restriction for 45 days. 13. A DA Form 2496 (Disposition Form), dated 6 January 1984, shows after consulting with counsel the applicant requested his scheduled separation board be cancelled and waived his right to appear before a board of officers. 14. On 20 January 1984, the separation authority approved the chain of command's recommendation for the applicant's discharge under the provisions of AR 635-200, paragraph 14-12b, and directed the applicant be issued an UOTHC Discharge Certificate with a separation program designator code of “JKM.” 15. On 27 January 1984, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of a pattern of misconduct, with a separation code of "JKM" and reentry code "3" and “3C.” His DD Form 214 also shows he completed 3 year, 2 months, and 2 days of net active service with 1 year, 11 months, and 23 days of foreign service during the covered period; no personal awards were listed. His service was characterized as UOTHC. 16. There is no indication the applicant petitioned to the ADRB for an upgrade of his discharge within that Boards 15-year Statute of limitations, or that he applied for a discharge upgrade to the ABCMR in 2010. 17. Regulatory guidance in effect at the time provided a discharge UOTHC was normally considered appropriate for Soldier's discharged under the provisions of AR 635-200, Chapter 14. 18. The Board should consider the applicant’s argument and evidence, along with the overall record, in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service. He contends he had mental health conditions 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 26 November 1980; 2) The applicant accepted nonjudicial punishment multiple times between January 1982- August 1983 for not being at his place of duty, not following orders, and disrespect; 3) The applicant was discharged on 27 January 1984, Chapter 14-12b, by reason of a pattern of misconduct. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant noted mental health conditions as a contributing and mitigating factor in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. On 17 November 1983, the applicant underwent a mental status evaluation as part of his separation proceedings. He was noted to have the mental capacity to understand and participate in the proceedings. 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 mental health conditions 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 engage in some erratic behavior, 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 the medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The medical opine determined there to be insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The applicant provided insufficient evidence of post-service achievements or character letters of support attesting to his honorable conduct that might have mitigated the discharge characterization. Further, the Board determined the applicant’s service record exhibits numerous instances of misconduct during his initial enlistment period for 3 year, 2 months, and 2 days of net active service. During deliberation, 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 under honorable conditions (general). 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. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 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. 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 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, 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) AR20230004768 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1