BOARD DATE: 28 May 2020 DOCKET NUMBER: AR20170000565 APPLICANT REQUESTS: his other than honorable discharge upgraded to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letters of Support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 in effect, he is requesting an upgrade on his medical because while actively in the service he suffered a nervous breakdown which led him to being hospitalized for mental incompetence. He still suffers until this day. He takes 3 psych medicines a month. His dad passed when he was 19 years of age which contributed to his schizophrenia and Post traumatic Stress Disorder (PTSD). He is in dire need of his pension, medical care and housing so he can become a productive member of society. 3. The applicant provides, a. A Letter of Support from LE which states he is the lead case manager at Exodus Recovery located at, CA. Bxxxxxx has been enrolled at their outpatient mental health program since 12 August 2016. He can attest to have witnessed Bxxxxxx Txxxx cross streets of western and imperial, CA from 12 August 2016. b. A Letter of Support from NT which states in effect, she has witnessed the applicant chronically homeless as he is residing on the cross streets of, CA from 1 November 1996 to11 August 2016. 4. A review of the service record shows. a. He was inducted in the Regular Army on 21 July 1970. b. Report of Medical Examination dated 21 July 1970 marked as normal clinical evaluation. c. Authorization for Medical Warning Tag dated 27 July 1970 typed allergy, penicillin. d. Standard Form 600 Chronological Record of Medicare Care form 6 August 1970 to 1 February 1971. e. He accepted nonjudicial punishment under Article 15 as follows: * On or about 2 June 1971 for failure to be at his appointed place of duty. Reduced to private E-2/PV2 * On or about 22 June 1971 for failure to be at his appointed place of duty * On or about 8 July 1971 for failure to be at his appointed place of duty f. Report of Medical Examination dated 6 October 1971 typed #42 no psychiatric disease demonstrated on this examination. g. On 13 September1971, the applicant was convicted by special court-martial number 138 of: * On or about 29 September 1971, he breached the restraint imposed by leaving his place of duty without authority * On or about 31 October 1971 absent himself without proper authority * On or about 4 November absent himself from his unit without authority until 9 November 1971 * The court sentenced him to confinement at hard labor for 2 months, h. The sentence was adjudged on 18 November 1971. i. On 17 December 1971, the convening authority approved the sentence and will be duly executed. j. Standard Form 600 Chronological Record of Medicare Care form dated 28 December 1971. k. Statement of Medical Condition dated 11 February 1972 stated no change to medical condition. l. He was discharged on 11 February 1972 under the provisions of Army Regulation (AR) 635-212 (Separations-Program) with a character of service of under other than honorable conditions. His DD Form 214 (Armed Forces of the United States Report of Transfers or Discharge) shows he served 1 year 3 months and 13 days of active service. It also shows he had 98 days of lost time. 26 July to 7 August 1971, 4 September to 8 September 1971, 20 September to 27 September 1971, 31 October to 2 November 1971, 4 November to 8 November 1971, 10 November to 12 December 1971, 13 to 14 December 1971, 15 December 1971 to 12 January 1972. 5. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military and military medical records. A review of VA’s Joint Legacy Viewer (JLV) indicates applicant does not a service connected disability rating. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use during his service. On 6 Oct 1971, applicant completed a separation physical and was found to meet retention standards and did not have any psychiatric symptoms/diagnoses. The applicant asserts diagnoses of schizophrenia and PTSD but there are no VA or civilian treatment records/reports to support either diagnosis. 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 condition at the time of his discharge. Based on his separation physical, he met retention standards at the time of his discharge. There are no diagnoses to consider with respect to mitigation of the misconduct that led to his discharge. 6. By regulation, AR 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 7. Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 1-9f (Under other than honorable conditions) sates a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. 8. AR 40-501 (Standard of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures 9. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. BOARD DISCUSSION: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board agreed with the Medical Advisory Opinion that the available record does not reasonably support a behavioral health condition at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance, there is no documented behavioral health conditions to consider with respect to mitigation of the misconduct that led to his discharge. The Board further found limited evidence of post-service honorable conduct or other possible grounds for clemency that might have mitigated the discharge characterization. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as a general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Paragraph 1-9f- (Under other than honorable conditions) sates a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service. 3. AR 40-501 (Standard of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. 5. 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; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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 based on 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. 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. Army Regulation (AR) 635-200 7. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. 8. By regulation, AR 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. a. Despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. b. Rehabilitation is impracticable (as in cases of confirmed drug addiction) or he is not amendable to rehabilitation measures (as indicated by medical and/or personal history record; c. An unfitting medical condition (AR 40-501) is not the direct or substantial contributing cause of his unfitness (para 9b). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000565 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1