IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230007234 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his bad conduct discharge (BCD) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference Letter * Thank you Letter * Honorable Discharge Certificate * Veterans Affairs identification card * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 AR20060014775 on 24 April 2007. 2. The applicant states correction is warranted because his wife deserted him, and disappeared with another Soldier. Her whereabouts were unknown until the divorce papers were served. He was prevented from seeing his daughter. He was wrongly advised to accept a court-martial to avoid jail time by the appointed defense attorney. 3. On his DD Form 149, the applicant notes that other mental health is related to his request. 4. The applicant enlisted in the Regular Army on 21 February 1978 for 3 years. Upon completion of training, he was awarded military occupational specialty 64C (Motor Transport Operator). He reenlisted on 21 August 1980. The highest grade he attained was E-4. 5. On 14 July 1981, the applicant was reported as absent without leave (AWOL) and remained absent until he returned to military control on 15 July 1981. 6. On 3 August 1981, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for going AWOL from on or about 14 July 1981 until on or about 15 July 1981. His punishment included forfeiture of $125.00. 7. On 6 July 1982, the applicant was reported as AWOL a second time, and remained absent until he returned to military authorities on 4 August 1982. 8. On 9 August 1982, the applicant was reported as AWOL a third time, and remained absent until he was apprehended and returned to military authorities on 22 October 1982. 9. Before a special court-martial on 10 November 1982, at Fort Hood, TX, the applicant was found guilty of two specifications of going AWOL. 10. The court sentenced him to a BCD, confinement at hard labor for ten days, and forfeiture of $382.00. The sentence was approved on 24 November 1982 and the record of trial was forwarded for appellate review. 11. The U.S. Army Court of Military Review affirmed the findings and sentence on 6 January 1983. 12. Special Court-Martial Order Number 11, issued by Headquarters, Fort Hood, Fort Hood, TX, on 10 March 1983, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 13. The applicant was discharged on 16 June 1983. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, Section IV, as a result of court-martial. His service was characterized as bad conduct. He was assigned Separation Code JJD and Reentry Codes 3, 3B, and 3C. He was credited with 5 years and 29 days of net active service this period with 90 days of time lost. 14. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment [see Administrative Notes]. 15. The applicant petitioned the ABCMR requesting upgrade of his BCD. On 24 April 2007, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 16. The applicant provides the following (provided in entirety for the Board): a. A character reference letter that attests to his mental health and provides additional contentions regarding his court-martial. b. Thank you letter for his actions, service, and mentorship as a volunteer with the Young Marines youth program. 17. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 18. 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. 19. MEDICAL REVIEW: a. Background: The applicant is requesting reconsideration of his previous request for upgrade of his bad conduct discharge (BCD) to honorable. The applicant asserts “other mental health” is 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 21 February 1978. He reenlisted on 21 August 1980. * On 3 August 1981, the applicant accepted non-judicial punishment (NJP) for going AWOL from on or about 14 July 1981 until on or about 15 July 1981. * On 6 July 1982, the applicant was reported as AWOL a second time, and remained absent until he returned to military authorities on 4 August 1982. * On 9 August 1982, the applicant was reported as AWOL a third time, and remained absent until he was apprehended and returned to military authorities on 22 October 1982. * Before a special court-martial on 10 November 1982, at Fort Hood, TX, the applicant was found guilty of two specifications of going AWOL. The court sentenced him to a BCD, confinement at hard labor for ten days, and forfeiture of $382.00. The sentence was approved on 24 November 1982 and the record of trial was forwarded for appellate review. The U.S. Army Court of Military Review affirmed the findings and sentence on 6 January 1983. * The applicant was discharged on 16 June 1983, under AR 635-200, Chapter 3, Section IV, as a result of court-martial. His service was characterized as bad conduct. * On 24 April 2007, ABCMR voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of the applicant’s records. 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 character letter, thank you letter, Honorable Discharge Certificate, and VA ID card. 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. The applicant asserted “other mental health” as related to his request for upgrade. The applicant asserted that his wife left him for another service member and her whereabouts had been unknown to him until he was served with divorce papers. He had been prevented from seeing his daughter. He shared this as the context or backstory to his AWOL and feels this context was not previously considered. In addition, the applicant’s supporting documents contain a letter of reference which highlights and further details potentially mitigating factors surrounding why he went AWOL, as well as how a supportive command could have helped him get emergency leave and locate his family. It was also asserted that the length of his AWOL was spent finding his wife and daughter, filing for divorce and ensuring he had legal visitation rights to his daughter. 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) and no other records were provided to substantiate his claim of other mental health. There are also no contemporaneous records available or provided to substantiate his assertion that he was experiencing family/marital issues during his time in service. e. Per the applicant’s VA EHR, he is not service connected. His characterization of service would typically make him ineligible for most VA benefits, however the applicant has been engaged in health care at the VA starting in 2021. While he has been receiving medical care, there is no indication of mental health care, nor any mental health diagnoses. 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. f. 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 asserts other mental health as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts other mental health was present during his time of misconduct. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted other mental health was related to his request for upgrade but never identified a specific potentially mitigating mental health condition. His application and supporting documents assert that his wife left him for another Soldier, taking their daughter, without word or explanation. This reportedly caused significant emotional distress, and once he learned of their location, he went AWOL (numerous times) to find his family, file for divorce, and ensure he had legal visitation rights to his daughter. There is no evidence that the applicant was experiencing a mitigating mental health condition during his time in service. There is no evidence the applicant has experienced any mental health conditions nor concerns since his discharge. There is also no contemporaneous evidence that he was experiencing significant family hardship during his time in service, nor did he provide any evidence of his attempts to resolve his family stressors through acceptable military channels. That said, given what the applicant contends occurred, he was likely in significant emotional distress. The applicant had served 3.5 years, to include an honorable discharge and reenlistment, with no other indication of poor performance or misconduct. Hence, his actions appear incongruent with the soldier he had been prior to this reported family hardship. Hence, while there is insufficient evidence of a mitigating mental health condition or experience, it is recommended the board consider clemency. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial 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 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 opine noted there is no evidence that the applicant was experiencing a mitigating mental health condition during his time in service. Additionally, there is no evidence the applicant has experienced any mental health conditions nor concerns since his discharge. 2. The Board commends the applicant for his post service achievement supporting his community and being mentor for the young Marines and found the letter of support attesting to your character commendable by seeking to the right thing for your family. The Board under liberal consideration found the applicant’s discharge harsh punishment given the lack of any offense except AWOLs and being dropped from the rolls. The Board noted the applicant provided insufficient supporting documentation for the Board to weigh regarding his mental health issues. However, the Board determined an upgrade of the applicant’s discharge is warranted to an under other than honorable conditions (UOTHC) discharge. During deliberation the Board found 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 by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 16 June 1983 by adding the following entries in * item 18 (Remarks): o SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE o CONTINUOUS HONORABLE SERVICE FROM 780221 UNTIL 800820 and in: * Item 24 (Character of Service) Under Other Than Honorable Conditions (UOTHC) Discharge 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his bad conduct discharge (BCD) to honorable. 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. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 2. 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. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 4. 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 3, section IV provided that a member would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 8. 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, 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) AR20230007234 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1