IN THE CASE OF: BOARD DATE: 17 September 2021 DOCKET NUMBER: AR20210010415 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to 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 16 September 2019 * DD Forms 214 (Report of Separation from Active Duty), for the periods ending 30 November 1974 and 22 August 1975 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 seen by numerous sociologists in the West Bend Public Schools for behavioral and social disorders, such as suspensions and expulsions. These conditions were all prior to his enlistment and did not result from his service. He further notes the separation was all his fault and he just wants a clear DD Form 214. He is not seeking any benefits, he just wants an honorable discharge. 3. The applicant enlisted in the Wisconsin Army National Guard (WIARNG) on 22 January 1974. He was ordered to active duty (ADT) on 23 May 1974 for the purpose of completing his initial entry training. He completed training, was honorably released from active duty (REFRAD) on 30 November 1974, and was returned to the control of the WIARNG. The DD Form 214 he was issued shows he was credited with competing six months and 18 days of net active service this period. 4. In preparation for enlistment in the Regular Army, the applicant underwent an initial entry examination on 3 March 1975. The applicant did not complain of any medical or mental health problems and noted he was in good health. The examining physician found him qualified for enlistment at the time. 5. The applicant was honorably discharged from the WIARNG on 9 April 1975, for immediate enlistment into the Regular Army. He was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was credited with completing one year, two months, and 19 days of service in the WIARNG. 6. The applicant enlisted in the Regular Army on 10 April 1975. 7. The applicant accepted non-judicial punishment (NJP) on 24 June 1975, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from his superior commissioned officer, on or about 23 June 1975. 8. Before a special court-martial on or about 15 August 1975, at Fort Leonard Wood, Missouri, the applicant was convicted of absenting himself from his organization, from on or about 20 July 1975 through on or about 4 August 1975. His sentenced included restriction and a forfeiture of pay and was ordered duly executed on 18 August 1975. 9. The applicant's commander notified the applicant on 15 August 1975 that he had initiated actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unsuitability. 10. The applicant acknowledged receipt of the proposed separation notification on 15 August 1975. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He elected not to make a statement in his own behalf. 11. The applicant underwent a medical examination on 15 August 1971. The relevant Standard Form (SF) 93 (Report of Medical History) shows he noted "he tried to seek help for an undisclosed mental health condition from a civilian hospital but was picked up for AWOL." Neither the examining physician nor the applicant elaborated further on his complaint, and he was found qualified for separation. 12. The applicant underwent a mental status evaluation on 15 August 1975. a. The report from the Mental Hygiene Consultation Service, Fort Leonard Wood, MO, shows: * he was found to have a moderate character/behavior disorder * he was found to be capable of distinguishing right from wrong and adhering to the right * he was found to be responsible for his actions and possessed the mental and emotional capacity to understand and participate in board and other legal proceedings * he was cleared for administrative action * he was recommended for elimination under the provisions of Army Regulation 635-200, Chapter 13 b. It is unclear whether or not the examining official was a licensed psychiatrist. 13. The applicant's commander formally recommended the applicant's separation from service, under the provisions of Army Regulation 635-200, Chapter 13, by reason of unsuitability. The commander cited the applicant’s psychiatric report, intentional absence without proper authority, and a character and behavior disorder resulting in his inability to adjust to military service. He also noted elimination for unfitness was not recommended. This Soldier's performance was characterized by a lack of progress in the Army and marked him as unsuitable for military service. 14. The separation authority approved the recommended discharge on 21 August 1975, under the provisions of Army Regulation 635-200, paragraph 13, and directed the issuance of a DD Form 257A (General Discharge Certificate). He waived the requirements for counseling and a rehabilitative transfer. 15. The applicant was discharged on 22 August 1975, under the provisions of Army Regulation 635-200, paragraph 13-5b (2). The DD Form 214 he was issued confirms his service was characterized as under honorable conditions. He was credited with completing four months of net active service this period. 16. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. a. Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. b. Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. c. Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 17. In 1976, new separations guidance was published in the form of the Brotzman and Nelson memoranda, which applied to Soldiers who were separated for unsuitability by reason of personality disorders (known previously as character and behavioral disorders). These memoranda stipulated that "applicants for relief who were not diagnosed by a medical doctor trained in psychiatry shall be entitled to have their discharges upgraded to honorable." The exception were cases where there were "clear and demonstrable reasons" why an honorable discharge should not be given. Convictions by a general court-martial or by more than one special court-martial were considered to constitute "clear and demonstrable reasons" that would justify a less than honorable discharge. 18. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation is void of behavioral health diagnoses or treatment. While the applicant references pre-enlistment behavioral health care, records were not supplied. Although liberal consideration was applied, documentation is insufficient to make a determination. Accordingly, there is no medical mitigation. b. The applicant was discharged on 22 August 1975 under AR 635-200 Chapter 13, Unsuitability, with a General characterization. The basis for separation is intentional absence without proper authority and a psychiatric report highlighting a character and behavioral disorder. The applicant is requesting an upgrade to Honorable noting “he just wants an honorable discharge.” Of note, the applicant indicated pre-enlistment treatment for “behavioral and social disorders” and his discharge was “all his fault and he just wants a clear DD214.” c. Due to the period of service, electronic active duty medical records are void. d. The electronic packet contains a March 1975 entrance physical in which the applicant denied prior behavioral health treatment or active symptoms. During his August 1975 separation physical, the applicant endorsed depression or excessive worry and nervous trouble. The applicant also indicated while AWOL, he attempted to visit behavioral health but was picked up for AWOL before he could attend. Of note, similarly to the entrance physical, the applicant did not report prior behavioral health treatment. An August 1975 Mental Health Consultation, i.e. Chapter Mental Status Exam (MSE), indicated the applicant exhibited maladaptive character/behavioral disorder; personality disorder. The applicant was cleared for separation as there were no psychiatric conditions failing retention standards or unable to be responsible for his actions. e. The applicant is not service connected. In 2017, the applicant started medical care and continues to date. Primary care records are void of behavioral health symptoms, diagnoses, or treatment to include psychiatric medications. The applicant has not been to behavioral health. BOARD DISCUSSION: The Board carefully considered the applicants 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 medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation 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. Paragraph 13-5(a), as then in effect, provided for the separation for unfitness (misconduct), which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. d. Paragraph 13-5b provided for the separation of Soldiers for unsuitability. (1) Sub-paragraph (1) applied to those Soldiers being separated for inaptitude. (2) Sub-paragraph (2) applied to those Soldiers being separated for character and behavior disorders [later deemed personality disorders]. (3) Sub-paragraph (3) applied to those Soldiers being separated for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. 3. Army Regulation 635-200 was revised on 1 December 1976, following the settlement of a civil suit. Thereafter, the type of discharge and the character of service imposed were to be determined solely based upon the individual's military record during the respective period of enlistment. Further, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. a. The Brotzman Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. b. The Nelson Memorandum expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable, except in cases where there was "clear and demonstrable reasons" why a fully honorable discharge should not be given. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018 [Wilkie Memorandum], 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) AR20210010415 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1