IN THE CASE OF: BOARD DATE: 10 February 2022 DOCKET NUMBER: AR20210010013 APPLICANT REQUESTS: In effect, affirmation of his general discharge, which was previously upgraded under the Department of Defense (DoD) Special Discharge Review Program (SDRP), so he may obtain care for his mental health issues, presumably at Department of Veterans Affairs (VA) hospitals. 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 14 September 2020 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 13 March 1970 * VA Decision Letter, dated 16 March 2020 * character reference letter, dated 7 September 2020; with author's biography 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, in effect, he was the victim of sexual assault by his former spouse and he was dealing with a lot of mental health issues at that time. He needs his discharge upgraded so he can get help with his mental health issues. 3. The applicant was inducted into the Army of the United States (AUS) on 21 March 1968. 4. The applicant accepted non-judicial punishment (NJP) on 5 August 1968, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit, at Fort Monmouth, NJ, from on or about 25 July 1968 until on or about 1 August 1968. 5. Before a special court-martial on or about 17 December 1968, at Fort Jackson, SC, the applicant was tried and found guilty of absenting himself from his organization, from on or about 11 August 1968 until on or about 22 November 1968. His sentence included a grade reduction to E-1 and confinement at hard labor for six months. The sentence was approved and ordered duly executed, except the portion adjudging confinement at hard labor for six months, which was suspended for six months, effective 20 December 1968. Subsequent special court-martial orders amended the period of his absence to 25 August 1968 through 22 November 1968. 6. It appears court-martial charges were preferred against the applicant; however, the relevant DD Form 458 (Charge Sheet) is not available for review. Nevertheless, his record contains a memorandum he submitted on 8 January 1970, wherein he requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. The applicant declined the opportunity to consult with legal counsel; however, he endorsed his acknowledgement of the following: 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 a bad conduct or dishonorable discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. In his request for discharge, he 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 VA, 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; however, he elected not to submit a statement. 7. The applicant’s immediate commander recommended approval of his discharge request on 8 January 1970, in accordance with Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His intermediate commander also recommended approval of his request for discharge in lieu of trial by court-martial, and that he be issued an undesirable discharge. 8. Consistent with the chain of command recommendations, the separation authority approved the applicant's request for discharge on 2 March 1970, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial – for the good of the service. He directed that the applicant be reduced to the lowest enlisted grade and that he be issued a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant underwent a separation physical on 10 March 1970. The relevant Standard Form (SF) 89 (Report of Medical History) shows he noted he was in good health and he did not complain of any mental health issues. The examining physician noted "no significant medical problems while on active duty." 10. The applicant was discharged on 13 March 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued confirms he was discharged in the lowest enlisted grade; his service was characterized as under other than honorable conditions (UOTHC); and he was issued an Undesirable Discharge Certificate. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he 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. 12. The applicant personally appeared before the Army Discharge Review Board (ADRB) on 29 November 1976 for an upgrade of his discharge. However, the ADRB Case Report and Directive is unavailable for review. 13. The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 14. The ADRB reviewed the applicant’s discharge on 21 June 1977, under the DoD SDRP. This review resulted in his service characterization being upgraded from UOTHC to under honorable conditions (general). His previous DD Form 214 was voided and a new DD Form 214 was created to reflect this change. 15. Public Law 95-126 was enacted in October 1978. This legislation: a. Denied VA benefits to any former service member who had been absent without leave (AWOL) for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. b. Required the Service Departments to establish historically-consistent uniform standards for discharge reviews. c. Required the Service Departments to reconsider all discharges previously upgraded under the DoD SDRP using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 16. The ADRB re-reviewed the applicant's record on 31 August 1978, in accordance with the uniform standards provision of Public Law 95-126. The ADRB determined not to affirm the applicant's re-characterization of his discharge due to the nature and severity of the charges for which the applicant requested discharge under Chapter 10. The ADRB further determined that an upgrade under uniform standards was not appropriate and voted unanimously to deny affirmation under uniform standards. The Board noted on a prior personal appearance he claimed "his wife (a witch) put a hex on him, which caused him to go AWOL." 17. A DD Form 215 (Correction to DD Form 214), dated 19 September 1978, shows item 27 (Remarks) was corrected to read "DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT RECHARACTERIZATION OF SERVICE WAS WARRANTED UP DOD SDRP 4 APR 77." 18. The Board has been advised in similar cases that the VA often requires validation or affirmation of SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits. 19. The applicant provides his original DD Form 214; a copy of a VA decision letter; and a character reference letter, in which the author (a chief warrant officer) notes that the applicant’s wife at the time "dosed him with unknown substances which severely deteriorated his psychological aptitude to continue service." 20. In reaching its determination, the Board should consider the applicant's petition, and his service record in light of the published guidance on equity, injustice, or clemency. 21. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the application, his military service records, and the VA electronic medical record (Joint Legacy Viewer (JLV)). a. Included in the documents for review is a transcript of applicant’s testimony in his personal appearance before the ADRB on 29 November 1976. This transcript reveals the applicant’s extensive testimony that he believed he was a victim of his wife’s “witchcraft.” He testified, “Well, some people might not believe in what we call witchcraft. I was under the spell of my wife. She had me under a hex. I’d call home and she’d say, 'I want you to be home immediately.' The next thing I know I’m on my way home.” He went on to describe feeling like she had a force over him that he could not control. He testified that this was the cause of each of his periods of AWOL. His wife would tell him to come home, and he would feel an uncontrollable force to go. He went on to testify, “Well I went back home and I’d just sit there. She’d tell me to sit there in that chair in that corner; I’d sit there until she’d get back.” Applicant’s counsel asked if he knew that he could have sought psychiatric care at the time to which applicant responded, “No, I didn’t know that.” When counsel went on to ask the applicant if he believed psychiatric care would have helped him, applicant responded in the affirmative. b. Review of JLV indicates that the applicant is not service connected. He has received some primary medical care from the VA beginning in 2020, but the record is void of any behavioral health encounters or diagnoses. c. After review of all available documentation, there is no evidence of the applicant being formally diagnosed with a behavioral health condition during the time of service, but such documentation would not be expected to exist given the period of service. It is the opinion of the ARBA Psychologist that the transcript of applicant’s testimony in front of the ADRB on 29 November 1976 is suggestive that applicant was either 1) experiencing a psychotic disorder or perhaps more likely 2) was the victim of mental and psychological abuse by his wife. A psychotic disorder, such as schizophrenia or delusional disorder would account for his beliefs that his wife was practicing witchcraft and had a spell on him. Either of these conditions would be considered a mitigating behavioral health condition. Regardless of a mitigating behavioral health condition, the applicant’s testimony suggests that he was the victim of mental and psychological abuse by his wife, which assists with substantiating his assertion that he was also the victim of sexual assault by his wife at the time of service. His assertion of sexual assault by his wife at the time if service is considered a military sexual trauma (MST) and therefore outweighs the multiple AWOL charges. 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. 2. The Board considered the applicant's claim that he was a victim of sexual assault and had mental health issues and the review and conclusions of the ARBA Psychologist. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by MST. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show the character of service he received upon upgrade by the DoD SDRP was affirmed. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the discharge upgrade he received from the DoD SDRP was affirmed. 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. The version in effect at the time 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. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 3. The DoD SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 4. Public Law 95-126 was enacted in October 1978. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration of all discharges previously upgraded under the DoD SDRP was required using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g. conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. 5. 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 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. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 7. The Under Secretary of Defense (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 sexual assault or sexual harassment was unreported, or 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. 8. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service 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) AR20210010013 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1