IN THE CASE OF: BOARD DATE: 26 May 2022 DOCKET NUMBER: AR20210012404 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20160016885 on 24 January 2020. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge based on medical reasons. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army National Guard General Discharge Certificate, dated 17 December 1978 * Clinical Psychologist Letter, dated 1 November 2018 * Initial Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ), dated 1 November 2018 * Clinical Psychologist Nexus Letter, dated 10 April 2020 * Review Evaluation of Residuals of Traumatic Brain Injury (TBI) DBQ, dated 30 April 2020 * Disability Benefits Questionnaire with Nexus Letter, dated 1 May 2020 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160016885 on 24 January 2020. Which states, in pertinent part, the Board denied his petition and concurred with the medical advisory opinion finding insufficient evidence to support the applicant’s allegations. 2. As a new argument, the applicant states his PTSD and TBI are service-connected and confirmed by a nexus letter. 3. Having had prior honorable service in the New York Army National Guard (NYARNG), the applicant enlisted in the Oregon ARNG (ORARNG) on 19 August 1974. 4. On 31 October 1976, the applicant transferred to the Texas ARNG (TXARNG) with an effective date of 1 November 1976. He was honorably transferred to the ORARNG on 7 July 1977. 5. On 8 July 1977, after returning to the ORARNG, the applicant underwent a “periodic” physical examination at which time a large left inguinal hernia was identified as well as pain in his right fifth finger following a fracture that had reportedly occurred four months prior to this examination. He was deemed to be qualified for retention with the recommendation to have the hernia repaired. The Standard Form 93 (Report of Medical History) completed by the applicant on the day of this physical examination indicates that he was aware of the hernia, and that it had been present since birth. His initial physical examination performed on 3 July 1973 at the time of his original enlistment did not make mention of a hernia by history or by physical examination. 6. On 14 August 1978, the applicant received a Notification of Unsatisfactory Participation wherein he was advised he had accrued a total of 9 unsatisfactory participation periods. The command requested he be placed on a tour of involuntary active duty for a period of 18 months and 5 days, under the provisions of Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) by reason of unsatisfactory participation in scheduled assemblies. 7. By letter, dated 5 September 1978, the ORARNG notified the applicant of his unsatisfactory participation and recommendation for placement on involuntary active duty. The letter further stated he was no longer authorized or required to attend scheduled training assemblies upon receipt of this notification. The letter appears to have been returned to sender as unclaimed by the applicant. 8. Orders Number 219-303, issued by Headquarters, Sixth United States Army, Presidio of San Francisco, CA on 13 November 1978, ordered the applicant to active duty for a period of 18 months and 5 days, with a report date of 8 January 1979. 9. On 20 November 1978, Headquarters, Sixth United States Army, Presidio of San Francisco, advised the applicant that orders were issued at the request of the ORARNG, The Adjutant General, based on the determination of that office he had been an unsatisfactory participant with his assigned unit under the criteria established in Army Regulation 135-91. 10. Orders Number 244-1, issued by the ORARNG on 18 December 1978, discharged the applicant with a general discharge and involuntarily ordered him to active duty, with an effective date of 7 January 1979. 11. On 8 January 1979, a warrant was issued for the applicant’s arrest. He was apprehended without incident by civilian authorities on 19 June 19xx in , following a routine traffic stop, and returned to the control of the military. 12. A physical examination completed upon the applicant’s arrival to Fort Sill, OK, indicated he had a large left inguinal hernia and he was referred to surgical services for further disposition. On 6 July 1979, he underwent hernia repair surgery of the left inguinal hernia and remained hospitalized until 13 July 1979. According to the operative report, he underwent a left inguinal hernia repair on 6 July 1979, with amputation of the greater omentum contained in the hernia sac. He was discharged from the hospital and returned to confinement on 12 July 1979. 13. Court-martial charges were preferred against the applicant on 17 July 1979 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 8 January 1979 through on or about to 19 June 1979. 14. The applicant consulted with legal counsel on 17 July 1979 and 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 UOTHC discharge; and the procedures and rights that were available to him. a. 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. b. He elected not to submit a statement in his own behalf. 15. The separation authority approved the applicant's request for discharge on 10 August 1979, under the provisions of Army Regulation 635-200, Chapter 10, and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate). 16. Accordingly, the applicant was discharged on 17 August 1979. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 17. 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. 18. In Docket Number AR20160016885 the Army Review Boards Agency (ARBA) medical advisor rendered an advisory opinion, wherein the advisor stated, while the record did indicate the applicant did in fact have a left inguinal hernia that was ultimately repaired surgically in a U.S. Army Hospital, there was no documentation to support the allegations he was told to stop attending the required unit training assemblies in the ORARNG. Additionally, there was no documentation provided to support his hernia occurred or was worsened by any duty activity related to his service with the ORARNG other than his statement. Additionally, there was no clinical evidence to support that PTSD or TBI had any role in his behavior or judgement based on the reviewed documentation. 19. The applicant provides numerous documents to include: a. A nexus letter, dated 10 April 2020, which states the applicant’s hernia was misidentified and labeled as a condition from birth. However, the applicant injured himself in military service resulting in his inguinal hernia, not an umbilical hernia. His discharge should be upgraded to a medical discharge, due to his misdiagnosed condition and lack of treatment while in service, which resulted in emergency surgery and his inability to attend to his duties, complicated by his TBI and memory impairments in service. b. A nexus letter, dated 1 May 2020, indicates it is more likely than not that the applicant’s large left inguinal hernia which was noted on his 8 July 1977 exam was incurred sometime before that date but after his enlistment in 1973. This suggests that his inguinal hernia, and all related surgeries scars, and complications that have resulted since this hernia developed, should be service connected. 20. The Board should consider the applicant's statement, evidence, and overall military service in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, his service records, and the Department of Veterans Affairs electronic medical record (Joint Legacy Viewer (JLV)). This request was previously denied in full on 24 January 2020 (AR20160016885). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. a. A medical document from a clinical psychologist who is an independent medical evaluator was obtained by the applicant after the VA determined the applicant’s PTSD was not connected to his military service. He lists the applicant’s stressors: Please refer to his statement dated May 30, 2017. Stressor summary: Vehicle accident in service in Washington State Injuries and unconsciousness He was not taken to the hospital The veteran states there was a cover up and he was accused of AWOL. The veteran states he was given an improper discharge due to the cover up. b. The applicant was a member of the Oregon Army National Guard, and there is no evidence the vehicle accident in the state of Washington was duty related. The applicant stated at that time: “I was given an honorable General discharge in Dec 1978 but about 5 months later I was reported as AWOL, arrested and given an emergency surgery for a hernia I acquired in service in 1976 but diagnosed in 1977. Dr. suggested repair hernia and reinstate but nothing was done the hernia grew to the size of a football in my left scrotum and after the tank accident in 1976 and my Tank commander almost died the same week, I had a chopper crash upside down in front of me, all's I could was just watch after that my life changed dramatically after that I started doing drugs and drinking a lot I got angry over little things and I constantly had flashbacks and nightmares of those things.” c. The provider then listed his military stressors as: Personally involved in and injured in a military tank accident. Personally witnessing a helicopter crash and witnessing mutilated crewmen. d. Review of his records in JLV show he has been diagnosed with PTSD based on stressors incurred during his military service. However, the Disability Evaluation System (DES) compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. e. Based on the information currently available, it is the opinion of the ARBA Medical Advisor that his PTSD fully mitigates his period of AWOL as well as unsatisfactory performance while in the Army National Guard as this condition is associated with avoidant behaviors. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. * Did the condition exist or experience occur during military service? Yes. * Does the condition or experience actually excuse or mitigate the discharge? Yes. 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 ARBA Medical Advisor. The Board found partial relief is warranted. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. The Board found, however, that the evidence does not support changing the reason for his discharge nor does the evidence support a fully honorable character of service. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general) and the reason and authority for his discharge should not be changed. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20160016885, dated 24 January 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 17 August 1979 to show his character of service as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's character of service to fully honorable and changing the reason and authority for his discharge. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-91, in effect at the time, governed service obligations of members of the Reserve Components. The regulation stated a member was an unsatisfactory participant when he/she accrued nine or more unexcused absences from scheduled drills during a one-year period. 3. 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. 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 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, 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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) AR20210012404 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1