IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210011709 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 January 2021 FACTS: 1. The applicant did not file within the three-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 suffered life changing circumstances beyond his control, while on active duty. He was the driver in a horrific automobile accident with a fellow Soldier and lifelong friend. He was the only survivor of a multivehicle collision. Although it was not his fault, he never quite recovered from the guilt. He received extensive psychiatric care with little change in his mental status. He followed all the recommendations of the military but still could not execute his duties as a Soldier. He requested a discharge due to the unrelenting mental anguish, which should be supported in his military medical records. When he was discharged, he was told if he maintained consecutive employment for at least six months following discharge, his record would reflect an honorable discharge rather than an undesirable discharge. He has never been unemployed since his discharge and has been employed for over 26 years with his current employer. The Disabled American Veterans (DAV) suggested he request an upgrade. 3. The applicant enlisted in the Regular Army on 26 September 1973. 4. The applicant’s service record contains a DA Form 2173 (Statement of Medical Examination and Duty Status) that shows he was treated at the U.S. Army Hospital, Fort Campbell, KY on 26 March 1974, for a nasal fracture that resulted from an accident in, on 25 March 1974. This form shows he was the driver of a vehicle involved in an accident that killed his passenger and the driver of the other vehicle. The form also shows his injury was considered in the line duty on 12 April 1974. 5. Court-martial charges were preferred against the applicant on 2 April 1975, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit, at Fort Campbell, KY, from on or about 3 June 1974 through on or about 9 July 1974, and from on or about 12 July 1974 through on or about 11 March 1975. 6. The applicant consulted with legal counsel on 2 April 1975 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf. He elected to submit a statement, however no such statement was found in his record. c. He did not print his name and social security number on the top of his request; however, he did initial his elections and sign the request. 7. The applicant's commander recommended approval of his request for discharge on 3 April 1975, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service and recommended he receive an undesirable discharge. 8. The applicant’s intermediate commander recommended approval of his request for discharge and further recommended he receive an undesirable discharge. 9. The separation authority approved the applicant's request for discharge on 9 April 1975, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and be issued a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 7 May 1975, under the provisions of Army Regulation 635-200, Chapter 10. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing 10 months and seven days of net active service. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 12. The applicant’s available service records do not show, and he does not provide any supporting documentation to substantiate, he suffered from or was treated for any mental health conditions while serving. However, his record does show he was involved in a fatal accident with another vehicle, while traveling with a fellow Soldier as a passenger, on 25 March 1974. This incident occurred prior to the misconduct leading to his discharge. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 14. MEDICAL REVIEW:. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy military medical record was not available for review. A review of his service record confirms he was the driver in a fatal car accident. The applicant asserts he suffered from mental health problems subsequent to the accident and received treatment. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. There is no documented behavioral health condition to consider with respect to mitigation of the misconduct that resulted in his discharge. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The applicant’s contentions, military record, regulatory guidance and medical review were carefully considered. The Board concurred with the advisory finding that there are no mitigating circumstances and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for 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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. 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 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 4. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 5. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 (TBI), 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 sexual assault or sexual harassment was unreported, or 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20210011709 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1