IN THE CASE OF: BOARD DATE: 11 September 2020 DOCKET NUMBER: AR20180007575 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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 23 May 2018 * Standard Form (SF) 93 (Report of Medical History), dated 19 October 1971 * SF 93, dated 8 January 1973 * Psychological Evaluation and Employability Evaluation, dated 20 April 2018 * Department of Veterans Affairs (VA) Form 21-0960P-4 (Initial Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire), dated 25 April 2018 * curriculum vitae, licensed psychologist, Ability Management Associates 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 has a mental health diagnosis that influenced his decisions while he was in the U. S. Army. He was embarrassed by the type of discharge he received and he did not know he could request a change in discharge. 3. The applicant enlisted in the Regular Army on 28 April 1971. 4. The applicant's service record contains a memorandum issued by Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, on 13 May 1971, which indicates the applicant was determined to be a minor under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 7, and his release from military control was approved. The applicant's Certificate of Birth Registration from the Department of Health, is attached to the memorandum and lists his birth date as . 5. The applicant was released from custody and control of the U.S. Army on 19 May 1971, under the provisions of Army Regulation 635-200, Chapter 7, by reason of voidance of enlistment. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms his service was characterized as honorable. He was credited with 21 days of active service. 6. The applicant underwent a physical examination on 19 October 1971. The relevant SF 93 (Report of Medical History), located in his service record, notes that he reported being in good health. He did indicate he had a history of attempted suicide; frequent or severe headache; dizziness or fainting spells; shortness of breath; broken bones; frequent trouble sleeping; depression or excessive worry. The corresponding SF 88 (Report of Medical Examination) medically qualified him for enlistment. 7. The applicant enlisted in the Regular Army on 23 December 1971. A completed DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 7 October 1971, is included in his service record. 8. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two occasions: * on 24 April 1972, for absenting himself from his unit, without authority, from on or about 18 April 1972 through on or about 20 April 1972 * on 12 May 1972, for absenting himself from his unit, without authority, from on or about 2 May 1972 through on or about 8 May 1972 9. The applicant underwent a pre-separation physical examination on 8 January 1973. The relevant SF 93, located in his service record, notes that he reported being in fair health. He did indicate he had a history of attempted suicide, frequent or severe headache, dizziness or fainting spells, hearing loss, head injury, broken bones, frequent trouble sleeping, depression or excessive worry. He did not know if he had experienced periods of unconsciousness. The corresponding SF 88 noted he had hearing loss since age nine due to a ruptured eardrum and he was qualified for separation. 10. Court-martial charges were preferred against the applicant on 17 January 1973, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with the following: * without authority, absent himself from his unit, from on or about 4 August 1972 through on or about 27 November 1972 * without authority, absent himself from his unit, from on or about 1 December 1972 through on or about 2 December 1972 * without authority, absent himself from his unit, from on or about 18 December 1972 through on or about 3 January 1973 11. The applicant consulted with legal counsel on 19 January 1973. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. 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. c. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 12. The applicant's chain of command recommended approval of his request for discharge for the good of the service. The separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 9 February 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 14. The applicant's record contains a memorandum dated 9 February 1973, notifying him of his discharge from the U.S. Army under the provisions of Army Regulation 635-200, Chapter 10. The actual notice of discharge was not given to the applicant because he was in an absent without leave (AWOL) status at the time of his discharge. 15. 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. 16. The applicant underwent a physical examination on 19 December 1973. The relevant SF 93 (Report of Medical History), located in his service record, notes that he reported being in good health. He did not make note of any prior medical history. The corresponding SF 88 medically qualified him for enlistment. 17. The applicant enlisted in the Regular Army on 21 December 1973. In connection with his enlistment, he signed a DD Form 4 (Enlistment Contract – Armed Forces of the United States), wherein he acknowledged the following: If I secure my enlistment by means of any false statement, willful misrepresentation or concealment as to my qualifications for enlistment, I am liable to trial by court martial or discharge for fraudulent enlistment and that, if rejected because of any disqualification known and concealed by me, I will not be furnished return transportation to place of acceptance. I am of the legal age to enlist. I have never deserted from and I am not a member of the Armed Forces of the United States, the U.S. Coast Guard or any Reserve component thereof: I have never been discharged from the Armed Forces or any type of civilian employment in the United States or any other country on account of disability or through sentence of either civilian or military court unless so indicated by me in item, 56. "Remarks" of this contract. I am not now drawing retired pay, a pension, disability allowance, or disability compensation from the government of the United States. 18. The applicant also signed a DA Form 3286 (Statement for Enlistment) on 17 December 1973, wherein in Part II – Statement of Law Violations and Previous Conditions, Item Number 2, (Have you ever been rejected for enlistment or induction in any of the Armed Forces to include failure of the mental examinations administered by any AFEES, or been discharged from previous service under other than honorable conditions, under Personnel Security Regulations, or by reason of unsuitability, or undesirable habits or traits of character, or for medical reasons?) he answered "no" to all questions. His signature certified that he had not intentionally concealed or misrepresented any information regarding prior enlistments in the Armed Forces. 19. The applicant accepted NJP on 22 January 1974, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, without authority, from on or about 11 January 1974 through on or about 21 January 1974. 20. The applicant's commander recommended him for elimination from military service, on 5 February 1974, under the provisions of Army Regulation 635-200, Chapter 14, by reason of fraudulent enlistment. His commander further stated the applicant was previously in the U.S. Army and was discharged UOTHC. The applicant's intermediate command recommended approval of the proposed separation action. 21. Consistent with the chain of command recommendations, the separation authority directed that the fraudulent entry of the applicant be voided under the provisions of Army Regulation 635-200, paragraph 14-12g, and further directed the applicant be released from the custody of the U.S. Army. 22. The applicant was discharged on 25 February 1974. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 14, by reason of release from military control. His service was characterized as under honorable conditions (general). 23. The applicant provides a psychological assessment and employability evaluation, completed by a licensed psychologist on 20 April 2018. a. The applicant left school in eighth grade but did complete his GED. He has been married since 1977 and has three children. He stopped smoking and using alcohol in 2008 and illegal drugs in 1991. He served in the U.S. Army from December 1971 until February 1973. He currently receives Social Security Disability and a pension from a previous employer. He is being evaluated for PTSD and employability. b. He started working for The Detroit News as a machine operator in 1971. He stopped working in 2009 due to his back. Throughout his career, he had issues with figures of authority, supervisors and coworkers. He was fired on several occasions but was able to get his job back with the assistance of the union. c. His current symptoms are difficulty staying asleep; waking with physical reactions such as sweating; intrusive, involuntary thoughts of his time in the military; seeing the American flag can cause these thoughts; feeling emotionally numb and void of feeling since his return from the military; he denies flashbacks; difficulty trusting others, no close relationships, rocky interpersonal relationships; has avoided thinking or talking about his trauma; feelings of alienation and separation from others; feeling a sense of doom and negativity with suicidal ideation; loss of interest in things he previously enjoyed; blanks in his memory regarding aspects of trauma. d. The psychologist noted the applicant indicated a history of attempted suicide, depression, headaches, dizziness and shortness of breath on his military entrance exam. In his exit examination, he checked off head injury, hearing loss, depression and trouble sleeping. She states his suicide attempt was at the age of 10 years old. Although there is not a history of treatment for mental illness, he was also kidnapped just prior to going into the service. He lost his hearing in third grade when his teacher hit his pencil while he was scratching his ear, puncturing his eardrum. e. He started drinking and using drugs shortly after getting out of the service. He has been arrested on at least 25 occasions due to drugs and alcohol. In 1991, he stopped using illegal drugs. In 2008, he stopped drinking alcohol and smoking. f. She concludes that the applicant presents with classic symptomatology related to service-connected PTSD. It is her opinion that he had emotional difficulties prior to his service. He outlined them in his military entrance exam, but the military did not take notice or make any accommodation for him. He was beaten by his platoon after returning from bivouac. He was struck on the head and feared for his life. More likely than not, this trauma exacerbated his previous symptoms, causing him difficulty and resulting in his UOTHC discharge. It is her professional opinion that he is not a viable candidate for rehabilitation, and he is unemployable. Based upon her assessment, he had PTSD prior to going into the service and certainly after he left the military. He has had a very poor post-military occupational, social and personal life. g. His spouse, whom he has known since they were in school, was present for the interview. Due to his memory difficulties, she assisted. She corroborated the events he outlined during the interview. h. The evaluating psychologist has included her curriculum vitae, along with the applicant's Global Assessment Functioning (GAF) Scale which she utilized in her assessment. She further assisted the applicant in completing the VA Initial PTSD Disability Benefits Questionnaire which is available for review in the application. 24. In the psychological assessment and employability evaluation, the psychologist states she has reviewed the applicant's "November 22, 1972: Honorable Discharge from the United States Marine Corps." There is no documentation included in the applicant's service record indicating he served in the United States Marine Corps. 25. 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 existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 26. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Agency psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documentation, the applicant’s pertinent military history as outlined in his ABCMR Record of Proceedings, applicant-provided civilian medical documentation and the VA electronic medical record (Joint Legacy Viewer-JLV). No hard copy military medical records were provided for review. 2. The applicant originally enlisted in the Army on 28 April 1971. Post-enlistment, he was determined to be a minor and was released from military custody and control on 19 May 1971 with a service characterization of honorable. On 23 December 1971, he again enlisted in the Regular Army. On his entry Report of Medical History (SF 93), he reported a history of attempted suicide; headache; insomnia; broken bone; shortness of breath; and depression or excessive worry. The corresponding Report of Medical Examination (SF 88) found him qualified for enlistment. The applicant voluntarily requested discharge in accordance with Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court martial and he was discharged UOTHC from the Army on 9 February 1973 and was AWOL at the time of his discharge. In December 1973, the applicant once again enlisted in the Army. In his 19 December 1973 entry Report of Medical History (SF 93), he reported he was in good health. He did not indicate any prior medical history. The corresponding SF 88 found him fit for enlistment. On 5 February 1974, his commander recommended he be discharged for enlisting fraudulently and on 25 February 1974, he was separated with an under honorable conditions discharge. 3. Applicant-provided medical documentation was reviewed. This documentation consisted of a Psychological Assessment and Employability Evaluation (24 April 2018) as well as a VA Initial PTSD Disability Questionnaire (20 April 2018). Both assessments determined that the applicant met the diagnostic criteria for PTSD, chronic, delayed, severe, related to trauma he suffered during his first enlistment when he was assaulted by members of his platoon after returning from bivouac. He was struck on his head and feared for his life. The evaluating provider also opined that the applicant, who made a suicide attempt at the age of 10, had PTSD prior to entering the service which was aggravated beyond its normal progression by the trauma he experienced in service. Additionally, the evaluating provider determined the applicant was unemployable. Review of the VA electronic medical record (JLV) indicates that it contains no information regarding the applicant. 4. Based on review of the available medical information, it is the opinion of the Agency psychiatrist that the applicant has a behavioral health condition, PTSD, which mitigates the misconduct which occurred during his 23 December 1971 enlistment. As there is an association between PTSD and avoidant behaviors, there is a nexus between his diagnosis of PTSD and his multiple incidents of being absent without leave that led to his discharge UOTHC on 9 February 1973. Of note, the applicant’s second enlistment, which ended with the applicant being discharged for fraudulent enlistment on 25 February 1974, is not mitigated by his diagnosis of PTSD as fraudulent enlistment (i.e., lying) is not part of the natural history or sequelae of PTSD. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the Agency psychiatrist based on available medical records. 2. The Board found insufficient evidence of in-service mitigating factors. While the Board noted the conclusion of the Agency psychiatrist regarding his misconduct (multiple periods of AWOL) being mitigated by PTSD, the Board concluded that there is insufficient evidence to conclude with any certainty that the condition was of such a degree at the time of his service that it mitigated his misconduct. The Board also found that his fraudulent enlistment subsequent to his UOTHC discharge undermines a conclusion that at the time the applicant was exhibiting avoidant behaviors associated with PTSD. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 7 provides the authority, criteria and procedures for the separation of enlisted personnel by reason of minority. Upon receipt of satisfactory proof of date of birth, members will be released from custody and control of the Army by reason of a void enlistment if the member enlisted while under 17 years of age and has not attained that age. d. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. e. Chapter 14 establishes policy and prescribes procedures for separating members for fraudulent entry cases and provides for the administrative disposition of enlisted personnel for misconduct by reason of fraudulent entry into the Service. An incident of fraudulent entry is the procurement of an enlistment, induction, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. Any incident which meets the foregoing may be cause for discharge for fraudulent entry. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), 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, 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 Under Secretary of Defense for 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 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20180007575 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007575 11 ABCMR Record of Proceedings (cont) AR20180007575 9