IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20180015446 APPLICANT REQUESTS: in effect, that 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 Tile 10, U.S. Code Section 1552), for the period ending 20 October 2018 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 was suffering from bi-polar disorder when he was in the Army and he was punished by fellow Soldiers; he incurred "beatings." 3. The applicant enlisted in the Regular Army on 13 September 1967. 4. Before a Special Court-Martial on or about 26 June 1968, at Fort Bragg, North Carolina, the applicant was convicted, pursuant to his plea, of being absent without leave (AWOL) from on or about 4 March 1968 until on or about 5 June 1968. He was sentenced to confinement at hard labor for six months. 5. Before a Special Court-Martial on or about 19 December 1968, at Fort Bragg, North Carolina, the applicant was convicted, pursuant to his plea, of being AWOL, from on or about 5 October until on or about 17 November 1968; of being AWOL, from on or about 2 December until on or about 4 December 1968; and of escaping from lawful confinement in the post stockade, on or about 2 December 1968. He was sentenced to confinement at hard labor for six months and a forfeiture of $73.00 pay per month for six months. 6. The applicant was evaluated by Mental Hygiene Consultation Services on 15 January 1969. He was diagnosed with being Passive Aggressive, chronic, Line of Duty – No, Existed Prior to Service. a. The attending psychiatrist stated: (1) Further counseling and rehabilitative efforts were most unlikely to affect any significant improvement in his level of function. (2) The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings. (3) There were no disqualifying mental defects sufficient to warrant disposition through medical channels and in his opinion the applicant could not be rehabilitated. b. The psychiatrist recommended administrative separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. The applicant's notification of separation initiation is not available for review. However, his records show he acknowledged receipt of the notification on or about 4 February 1969. He consulted with counsel and he made an election not to submit a statement in his own behalf. 8. The applicant's commander formally recommended his discharge on 4 February 1969, under the provisions of Army Regulation 635-212, for unfitness. The commander cited the applicant's involvement in frequent incidents of a discreditable nature with military authorities as the basis for his recommendation. The commander noted that the applicant was sent to the 4th Correctional Training Unit, 1st Correctional Training Battalion, Fort Riley, Kansas, for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However, his actions since arrival at the facility precluded accomplishment of that objective. 9. The separation authority approved the recommendation for discharge on or about 12 February 1969, under the provisions of Army Regulation 635-212, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged on 19 February 1969, under the provisions of Army Regulation 635-212, for unfitness. His DD Form 214 confirms his service was characterized as UOTHC and he was issued an Undesirable Discharge Certificate. 11. During the processing of the case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) staff psychologist, who was asked to review this case. Documentation reviewed included the applicant's ABCMR application, his hardcopy military records and military medical records, and the electronic Department of Veterans Affairs (VA) medical record (JLV). The electronic military medical record did not exist at the time of his service. a. A review of the applicant's electronic VA medical record indicates the applicant receives treatment for multiple medical conditions to include Seizure Disorder and Hypothyroidism. A triage encounter shows the applicant reported prior treatment for Bipolar Disorder (Risperdal) at the Frankford Health Center. There is no documentation to support diagnosis or treatment by the Frankford Health Center. However, a VA intake note dated 19 November 2013, completed by the psychiatrist, diagnosed him with Mood Disorder not otherwise specified. b. The applicant does not have a service connected disability rating. There is insufficient documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses in accordance with Army Regulation 40-501 (Fitness for Medical Standards). There is no behavioral health diagnosis to consider with respect to mitigation of the misconduct that led to his discharge. 12. The applicant was provided a copy of the advisory opinion for his information and/or possible rebuttal. He did not respond. 13. 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 post-traumatic stress disorder (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. 14. The Board should consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion and published DoD 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 claim to have had bi-polar disorder and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a psychiatric condition. 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, U.S. Code, 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 (Personnel Separations – Enlisted Personnel), in effect at the time, governed the policies and procedures for the separation of enlisted personnel. This regulation 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. 3. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 4. 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, 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 (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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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. 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 for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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) AR20180015446 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180015446 7 ABCMR Record of Proceedings (cont) AR20180015446 5