BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20180000091 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 27 April 2018 DOCKET NUMBER: AR20180000091 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 earlier request for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. 2. The applicant states in effect: a. He was discharged from active duty for the good of the service for a period of being absent without leave (AWOL). He was under a great deal of stress at the time due to his wife leaving him and threatening to abort his daughter, and he was not approved for leave to attempt to avert it. Those issues combined with the rigors of constant Cold War readiness left him with undiagnosed post traumatic stress disorder (PTSD). He has a record of letters from that period of time surrounding his situation from his mother and daughter showing the reason for him going AWOL. b. He is also 100 percent permanently disabled and cannot work due to depression. Also, he has documentation from his physician detailing his depression and subsequent disability stemming from undiagnosed PTSD from his time in the Armed Forces. c. He discovered the Department of Veterans Affairs (VA) was checking older records to determine if there were cases of undiagnosed PTSD, and he feels it would be in the interest of justice to give proper attention to mental disorders. He also notes that on 3 September 2014, the VA and military boards of correction were instructed by the Secretary of Defense to grant liberal consideration to requests for discharge upgrades from veterans who may have been suffering from PTSD or traumatic brain injury before they were a recognized diagnosis. 3. The applicant provides: * medical doctor’s note, dated 18 September 2017 * DD Form 214 (Report of Separation from Active Duty) for the period ending 19 April 1974 * letters of support CONSIDERATION OF EVIDENCE: 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 AC83-11106 on 18 January 1984 and Docket Number AC83-11106A on 26 October 1994. 2. The applicant provides new evidence and argument that warrant consideration by the Board. 3. The applicant enlisted in the Florida Army National Guard (FLARNG) on 14 October 1971. He entered active duty for training (ADT) on 6 January 1972 and on 14 May 1972 he was honorably released from ADT to his ARNG unit. 4. Letter Orders Number E-11-9, issued by Headquarters, 3rd U.S. Army, Fort McPherson, GA, dated 3 November 1972, ordered the applicant to active duty for a period of 19 months and 22 days. 5. His DA Form 20 (Enlisted Qualification Record), item 38 (Record of Assignments), shows he arrived in Germany on or about 7 February 1973 and he was assigned to D Company, 23rd Engineer Battalion. 6. On 1 October 1973, he departed his unit in Germany in an AWOL status and returned to military control on 16 October 1973. 7. On 26 October 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the above period of AWOL. 8. On 2 December 1973, he departed his unit in Germany in an AWOL status, and on 31 December 1973, he was dropped from the rolls as a deserter. He surrendered in Jacksonville, FL, and was returned to military control on 4 March 1974. 9. On 7 March 1974, a DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, U.S. Army School, Training Center and Fort Gordon, GA. The applicant was charged with being AWOL from on or about 2 December 1973 to 4 March 1974. 10. On 18 March 1974, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged he was making the request of his own free will and had not been coerced by any person. He understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and he might be ineligible for many or all benefits administered by the VA. He elected to submit a statement in his own behalf. 11. On 18 March 1974, he provided a statement on his behalf, stating, in effect, his attitude with the Army was okay but he needed to get out because of personal problems and he would not be a good Soldier. He did not care about the type of discharge he would receive and he did not want to wait 72 hours to consider requesting a chapter 10. 12. His chain of command concurred with the recommendation for an undesirable discharge. 13. On 26 March 1974, the separation authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued. 14. On 19 April 1974, he was discharged under other than honorable conditions. His DD Form 214 shows he completed 1 year and 22 days of creditable active service with 4 months and 9 days of prior active service and 9 months and 17 days of prior inactive service. It also shows lost time from 1-15 October 1973 and 2 December 1973 to 3 March 1974. 15. On 23 June 1975, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. On 9 February 1977, the ADRB determined he was properly discharged. 16. On 30 April 1979, the applicant petitioned the ADRB for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. On 10 June 1980, the ADRB determined his discharge was proper and equitable. 17. On 18 October 1982, the applicant petitioned the ADRB for an upgrade of his under other than honorable conditions discharge to an honorable discharge. On 23 June 1983, the ADRB determined his discharge was proper and equitable. 18. On 15 January 1994, the applicant petitioned the ABCMR for an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. On 26 October 1994, the Board determined he did not submit sufficient relevant evidence to demonstrate an error or injustice. 19. The applicant provides: a. A note written by Dr. UM, dated 18 September 2017, stating the applicant was incapable of gainful employment due to severe depression. b. Two letters of support that state, in effect, his former spouse attempted to commit suicide when he was in Germany and wanted him to come home. She would write him letters saying if he did not come home she was going to commit suicide and abort their unborn child. He went AWOL and when he discovered the baby was okay he turned himself in. 20. On 30 January 2018, an Army Review Boards Agency (ARBA) psychologist/medical advisor reviewed the applicant’s records and rendered an advisory opinion in his case. He stated: a. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. b. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army; however, the applicant’s intellectual limitations, as documented in records by his general-technical (GT) score and scores on other pre-enlistment testing, do suggest he had limited ability to understand the information conveyed to him as part of the chapter 10 process. Also, his discharge seems harsh in relation to his intelligence and his ability to cope with the family challenges, well-documented in the files, which motivated his AWOL. 21. The applicant was provided with a copy of this advisory opinion to give him an opportunity to respond and/or submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d stated an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 1-9e stated 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 has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court- martial at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions was normally considered appropriate. 2. 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 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. a. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD- related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? b. Although Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had PTSD at the time of discharge, it is presumed they were properly discharged based upon the evidence that was available at the time. (1) Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. (2) BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. (3) PTSD is not a likely a cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 3. On 25 August 2017, the Office of the Under Secretary 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; and 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 the misconduct which led to the discharge. DISCUSSION: 1. The available evidence shows the applicant was discharged in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. Discharges under this chapter are based on a voluntary request. He consulted with counsel and acknowledged he had not been coerced with respect to the request for discharge. 2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. This Board is 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. a. A staff psychologist reviewed the available documentation and found insufficient evidence of a disability or condition which would support a change to the character or reason for the discharge in this case. b. The advising psychologist concluded that, based on the information available for review, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The psychologist noted the applicant’s intellectual limitations, as documented in records by his GT score and scores on other pre-enlistment testing, do suggest he had limited ability to understand the information conveyed to him as part of the chapter 10 process. The advising psychologist opined that his discharge seems harsh in relation to his intelligence and his ability to cope with the family challenges, well-documented in the files, which motivated his AWOL BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20180000091 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC83-11106, dated 18 January 1984, and Docket Number AC83-11106A, dated 26 October 1994. 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. . //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000091 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180000091 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2