IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20160003024 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC91-11001, dated 1 April 1992. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * voiding the applicant’s DD Form 214 for the period ending 6 June 1972 * issuing a new DD Form 214 for the period ending 6 June 1972 showing his characterization of service as "General, Under Honorable Conditions," his rank and grade as private/E-2, and his date of rank as 26 May 1971 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. IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20160003024 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :mwm :dt :mra GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20160003024 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to a general discharge. 2. The applicant states he was drafted into the Army in 1971. He was 21 years of age and only had an 8th grade education. His attempts to obtain his General Education Diploma in the military failed. He experienced a rough upbringing that resulted in him being unsocial. He did not get along well with people and he was considered mentally retarded. He applied for disability in 1968, 3 years before he was drafted. With these problems and being placed in an environment that was contrary to what he was used to exasperated the situation and his actions. The military did not research his background to determine if he would be able to fulfill his duty that could have resulted in a deployment to Vietnam. Had the military been aware and considered his educational and mental health problems he would not have been accepted. 3. The applicant provides: * Social and Personality Record * DA Form 20 (Enlisted Qualification Record), pages 1 and 4 * 1972 Standard Form (SF) 88 (Report of Medical Examination), page 1 * Work Record * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Social Security benefits request * Department of Mental Health Intake/Assessment * eleven character letters CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC91-11001 on 1 April 1992. 2. The applicant provides an undated Social and Personality Record wherein his parents were advised that he received "F" grades in English, World History, General Mathematics, and General Science. 3. In connection with his induction into the Army of the United States, the applicant underwent an induction medical examination on 7 January 1971. His SF 88 indicated there were no disqualifying defects or communicable diseases found and he was qualified for induction. 4. He was inducted into the Army of the United States on 8 March 1971 under the provisions of Project 100,000. He also completed a DD Form 398 (Statement of Personal History) indicating he attended school from 1957 to 1970 and did not graduate. 5. He first completed the Army Preparatory Training on 1 April 1971. He was then reassigned to the U.S. Army Training Center, Fort Leonard Wood, MO, on 11 May 1971, where he completed basic combat and advanced individual training and was awarded military occupational specialty 12A (Pioneer). He was promoted to pay grade E-2 on 26 May 1971 6. He was issued reassignment orders to the Overseas Replacement Station at Fort Lewis, WA, for further assignment to Korea but he failed to report. 7. On 10 August 1971, following his failure to report to the Overseas Replacement Station at Fort Lewis, he was reported absent without leave, and on 9 September 1971, he was dropped from the Army rolls. He returned to military control on 4 March 1972. 8. His records contain and he also provides an SF 88 that shows he underwent a medical examination on 17 May 1972 for the purpose of separation. The form contained the statement, "There was no reasonable grounds for belief that the applicant was or ever had been mentally defective, deranged, or abnormal. A psychiatric examination was not deemed to be appropriate." He was found qualified for separation under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). 9. His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain: a. Special Orders Number 48, dated 5 June 1972, reducing him to pay grade E-1 effective 1 June 1972, by reason of discharge. b. A DD Form 214 discharging him in pay grade E-1 on 6 June 1972, under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 credited him with 6 months and 5 days of active service and 268 days of time lost. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 10. His DD Form 214 lists in item 30 (Remarks) the entry "Highest Civilian Education Level Attained: 8 years." 11. His record is void of any evidence he was diagnosed with a mental health problem prior to his induction and/or during his period of military service. 12. On 1 April 1992, the ABCMR denied his petition for an upgrade of his discharge. 13. On 13 February 1995, the ABCMR determined his petition for reconsideration was not timely filed and he provided no new evidence not previously considered by the Board. His request was administratively closed without action. 14. He further provides: * Work Record – listing his employment history from 1969 to 1973 in the positions of laborer, janitor, gas station attendant, and car washer * Social Security benefits request, dated 29 June 2009, for disability insurance benefits with his spouse as his representative * Department of Mental Health Intake/Assessment, dated 17 February 2011, stating he received treatment for his depression and anxiety for multiple years and he had been told he was a paranoid schizophrenic * eleven character letters, dated in September 1993, wherein several individuals attested that the applicant had psychiatric problems and he required professional help for mental conditions 15. On 2 April 2017, an advisory opinion was provided by the Clinical Psychologist, Army Review Boards Agency (ARBA). The ARBA psychologist stated the ARBA Case Management Division requested a review of this case for a determination if the applicant's available record supported post-traumatic stress disorder (PTSD) or other boardable behavioral health (BH) condition existed at the time of the applicant's service. The ARBA psychologist stated: a. There were no Armed Forces Health Longitudinal Technology Application and Department of Veterans Affairs records available for review in the applicant's case. The applicant was drafted into the Army under a program that lowered the intellectual standards for military service. b. Based on review of the available documentation, the ARBA psychologist believed the applicant's level of intellectual functioning and documented history of mental retardation supported mitigation of the applicant's misconduct, especially given the meritless idea that there was some time in the past when the applicant was not at least mildly retarded. The possible personality disorder of the applicant as well as his related emotional fragility when combined with his low intelligence would predict a bad outcome for which it was unseemly to blame him. c. The ARBA psychologist concluded that the applicant did meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. It was unknown if the applicant's mental health conditions were considered at the time of his discharge from the Army. d. There was evidence of a mental health condition that bore on the character of the applicant's discharge. A mitigating nexus between the applicant's misconduct and his mental health was discovered. 16. The advisory opinion was provided to the applicant on 4 April 2017 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. Project 100,000 (also McNamara's 100,000) was a 1960s program by the U.S. Department of Defense to recruit Soldiers that would previously have been below military mental or medical standards to meet the escalating manpower requirements during American involvement in the Vietnam War and ended in December 1971. 2. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, could submit a request for discharge for the good of the service. The request for discharge could be submitted any time after court-martial charges were preferred against them, regardless of whether the charges were referred to a court-martial and the type of court-martial. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A Soldier discharged with an under other than honorable conditions character of service would normally be reduced to the lowest enlisted grade prior to their date of discharge. 3. AR 635-40, in effect at the time, governed the evaluation of physical fitness of Soldiers who could be unfit to perform their military duties because of a physical disability. It stated the mere presence of an impairment did not, of itself, justify a finding of unfitness because of physical disability. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 6. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); 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. 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. DISCUSSION: 1. The applicant's record is void of the complete facts and circumstances surrounding his discharge. However, based on his lost time of 268 days, it appears court-martial charges were preferred against him. It also appears after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army. 2. Discharge actions processed under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. In the absence of evidence to the contrary, it is presumed all requirements of law and regulations were presumably met and/or the rights of the applicant were fully protected throughout the separation process. 3. The Board begins its consideration of each case with the presumption of administrative regularity; the applicant bears the burden of proving an error or injustice by a preponderance of evidence. In this case, the applicant offered no documentary substantiation to support his assertions. 4. Nevertheless, current standards provide for liberal consideration in cases where civilian providers confer diagnoses of BH conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate a BH disorder existed at the time of discharge which might had mitigated the misconduct. 5. A review of the applicant's case by a clinical psychologist yielded a finding that the applicant's level of intellectual functioning and documented history of mental retardation supported mitigation of his misconduct. His possible personality disorder as well as his related emotional fragility when combined with his low intelligence would predict a bad outcome and it would be unseemly to blame him. 6. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 7. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003024 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003024 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2