IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230005994 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-Authored Statement * Character Letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 introduced to hashish, by a senior enlisted man, while stationed in Germany. That is when his substance abuse began. Due to the pressure of his drug use and an abusive platoon sergeant he went absent without leave (AWOL). When he returned to his unit, he went through drug rehabilitation. It seemed he had his drug use under control, and he reenlisted. He was sent to Fort Carson, CO, and peer pressure got to him and he started doing drugs again. After going AWOL again, he was chaptered out on what he thought was a under honorable conditions, general discharge. He was never disrespectful or violent while in uniform. He was a young know-it-all idiot who went off the rails. He is very proud of being a Soldier. He retains the discipline and honor the Army instilled in him. In 1982, he was young and stupid. It took many years for him to realize how important everyone’s military service is. 3. The applicant enlisted in the Regular Army on 16 April 1979 for four years. His military occupational specialty was 11C (Indirect Fire Infantryman). 4. He served in Germany from 22 July 1979 through 14 April 1982. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 30 December 1980, for without authority, failing to go at the time prescribed to his appointed place of duty on or about 23 November 1980; his punishment consisted of 14 days extra duty * May 1981, for AWOL from 23 April to 27 April 1981 and breaking restriction 6. The applicant reenlisted on 4 December 1981 for four years. 7. The applicant was formally counseled on the following dates: * 9 September 1982, for being AWOL, he was informed to seek professional help for his drinking problem * 18 September 1982 for a problem with drugs and alcohol * 29 September 1982, for being AWOL from 24 September to 29 September 1982 8. The applicant was AWOL on 23 September 1982 and present for duty (PDY) on 29 September 1982. He surrendered at Fort Carson. 9. During counseling on 29 September 1982, the applicant stated that he had been on a 2-week drinking binge. He had grown tired of military life and wanted out. He had financial and family problems. Alcohol counselling and action under UCMJ was recommended. 10. The applicant was formally counseled regarding his two counseling statements resulting from his two recent AWOL incidents. His performance had been less than satisfactory, and he twice attempted and rejected the alcohol rehabilitation program. 11. The applicant was AWOL on 5 October 1982 and PDY on 26 October 1982. He surrendered at Fort Carson. He was placed in pretrial confinement on 28 October 1982, pending court martial for AWOL time. He was PDY on 10 November 1982. 12. The applicant’s commander requested a waiver of rehabilitative transfer for elimination under Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel) on 10 November 1982. The commanding officer approved the waiver of rehabilitative transfer regarding the applicant. 13. A Report of Mental Status Evaluation, dated 10 November 1982, shows the applicant had the mental capacity to understand and participate in proceedings, he was mentally responsible, and met retention requirements. The staff psychiatrist noted, the applicant had been seen at the Community Mental Health Activity for psychiatric evaluation. He presented with no history of mental illness. No psychiatric illness was present at the time, and he was psychiatrically cleared for any administrative action deemed appropriate by command. 14. The applicant accepted NJP under Article 15 of the UCMJ on 15 November 1982 for AWOL on or about 23 September 1982 to on or about 29 September 1982. His punishment consisted of reduction to private/E-1, forfeiture of $200.00 per month for two months, restriction and extra duty. 15. The applicant did not desire to undergo a physical examination prior to his elimination from the Army. 16. The applicant’s immediate commander notified him of his intent to recommend separation under the provisions of AR 635-200, Chapter 14, for misconduct The applicant acknowledged receipt of the notification. 17. The applicant consulted with legal counsel on 24 November 1982 and was advised of the basis for his separation and the procedures and rights that were available to him. He waived counsel, consideration of his case by a board of officers, and personal appearance before a board of officers. a. He acknowledged that he may expect to encounter substantial prejudice in civilian life if discharged UOTHC discharge was issued to him, and he may be ineligible for many or all benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. 18. The applicant's immediate commander formally recommended the applicant be discharged because of misconduct under the provisions of AR 635-200, Chapter 14- 12b(1), for misconduct-frequent acts of a discreditable nature with military authorities. His commander recommended he receive an UOTHC characterization of service. The chain of command recommended approval. 19. The separation authority approved the recommended discharge on 6 December 1982 and directed that the applicant be furnished an UOTHC Discharge Certificate. 20. The applicant was discharged on 15 December 1982. His DD Form 214 confirms he was discharged under the provisions of AR?635-200, paragraph 14-12b, for misconduct-pattern of misconduct. He was assigned Separation Code JKE with Reenlistment Code 4. His service was characterized as UOTHC. He completed 3 years, 6 months, and 17 days of net active service. He had four periods of lost time. His awards include the: Army Service Ribbon, two marksmanship badges, and the Overseas Service Ribbon. 21. Soldiers are subject to separation under the provisions AR 635-200, Chapter 14, for misconduct. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. 22. The applicant provides a character letter that attests to his excellent character and strong work ethic. He treats fellow co-workers with the utmost respect and has never been cited or reprimanded for negative or unprofessional behavior. He has expressed regret that he did not take his military career as serious as he should have. 23. 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. 24. MEDICAL REVIEW: a. Background: The applicant is requesting his under other than honorable conditions (UOTHC) discharge be upgraded. The applicant asserts being “young and stupid” and substance use are related to his request for upgrade. 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: * The applicant enlisted in the Regular Army on 16 April 1979. * The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 30 December 1980, for without authority, failing to go at the time prescribed to his appointed place of duty on or about 23 November 1980 * May 1981, for AWOL from 23 April to 27 April 1981 and breaking restriction * The applicant reenlisted on 4 December 1981 for four years. * The applicant was formally counseled on 9 September 1982, for being AWOL (he was informed to seek professional help for his drinking problem), on 18 September 1982 for a problem with drugs and alcohol, and on 29 September 1982, for being AWOL from 24 September to 29 September 1982. * The applicant was AWOL on 5 October 1982 and PDY on 26 October 1982. He surrendered at Fort Carson. He was placed in pretrial confinement on 28 October 1982, pending court martial for AWOL time. He was PDY on 10 November 1982. * The applicant accepted NJP under Article 15 of the UCMJ on 15 November 1982 for AWOL on or about 23 September 1982 to on or about 29 September 1982. * The applicant's immediate commander formally recommended the applicant be discharged because of misconduct under AR 635-200, Chapter 14-12b(1), for misconduct-frequent acts of a discreditable nature with military authorities. His commander recommended he receive an UOTHC characterization of service. The chain of command recommended approval. * The applicant was discharged on 15 December 1982 with an UOTHC characterization of service. 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), his DD Form 214, documents from his service record and separation, as well as a self-authored statement and character letter. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV), though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. The applicant asserted being young and stupid in 1982. He did not specify a mitigating condition on his application though in his self-authored statement he noted being introduced to hashish by a senior enlisted man a few months after arriving in Germany. He noted this was when his substance abuse started. He noted an abusive platoon sergeant and drug use led to him going AWOL. He noted upon return that he attended “rehab” and it helped him get his drug use under control. He reported that after he arrived at Fort Carson, he began using again and went AWOL. He then was separated. d. 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) though they did contain administrative documents with relevant medical information. The applicant was seen for a separation mental status exam (MSE) on 10 November 1982. The applicant’s presentation and overall assessment was unremarkable. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, met medical retention requirements per AR 40-501 chapter 3, was not found to have any significant mental illness nor mental health history, and was cleared to participate in administrative proceedings deemed appropriate by command. The applicant did not desire to undergo a physical examination prior to his elimination from the Army. During a counseling (likely October 1982) it was noted that the applicant rejected the alcohol rehabilitation program and expressed “no desire whatsoever to remain in the Army.” e. There is no evidence the applicant is service connected. He has not been engaged in any 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. No other medical records were provided. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, beyond self-report, 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 asserts being “young and stupid” as well as substance use as mitigating factors. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts these factors were present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. First and foremost, any substance use disorder, as a standalone diagnosis, is not currently a mitigating condition. In addition, there were no medical records provided or available that substantiated a substance use disorder diagnosis. Second, his contention that he was “young and stupid” does not constitute a mitigating condition. Third, there was no medical or mental health documentation that substantiated the presence of any mitigating condition or experience. The applicant was evaluated during the separation proceeding and was not found to have any mental health history. Of note, going AWOL and substance use are avoidance behaviors associated with the natural history and sequelae of several mental health conditions. However, this behavior is not sufficient to establish a history of a condition during active service. That said, per Liberal Consideration guidance, the applicant’s 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 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 considered the advising official findings of no evidence the applicant is service connected. He has not been engaged in any care through the VA and he holds no mental health diagnoses with the VA. The opine noted there is insufficient evidence, beyond self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. 2. However, the Board determined the applicant’s characterization of service was harsh for multiple AWOLs with no evidence of violence. accepts responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. The Board agreed an under honorable conditions (General) character of service is warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an honorable characterization. Additionally, during deliberation the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service. As such, the Board granted relief to upgrade the applicant’s characterization of service to general, under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by * reissuing the applicant, a DD Form 214 for the period ending 15 December 1982 showing in item 24 (Character of Service) Under Honorable Conditions (General) Discharge and adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790416 UNTIL 811203 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, 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. 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 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could 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 Service Discharge Review Boards (DRB) and Service 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and BCM/NRs on 25 July 2018, 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 grounds. 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) AR20230005994 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1