IN THE CASE OF: BOARD DATE: 18 November 2022 DOCKET NUMBER: AR20220003471 APPLICANT REQUESTS: reconsideration of his previous requests for upgrade of his under honorable conditions (general) discharge, and his narrative reason for separation be changed to "Condition, Not a Disability" or in the alternative "Secretarial Authority." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Applicant Statement •Various documents from his Military Personnel Record •Record of Proceedings from previous cases •Initial Post Traumatic Stress Disorder (PTSD) Benefits Questionnaire •Department of Veterans Administration (VA) Rating Decision Letter FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number: •AR20080005441 on 16 June 2008 •AR20080009962 on 24 September 2008 •AR20120017458 on 17 October 2012 •AR20140003372 on 13 March 2014 2.The applicant states his discharge does not reflect that he experienced significantabuse and racial discrimination by his officers. This abuse led to his mental healthsymptoms that mitigates the misconduct that led to his discharge. Post-TraumaticStress Disorder (PTSD) is related to his request. 3.The applicant enlisted in the Regular Army on 28 March 1974 for three years. Hewas in the military occupational specialty (MOS) 74C (Data Analysis Specialist) coursefor 7 weeks from on or about 1 August 1974 to 24 September 1974. He was thentrained and awarded the MOS 11B (Light Weapons Infantryman) on 30 March 1975. 4.The applicant accepted non judicial punishment (NJP) under Article 15 of the Uniform code of Military Justice (UCMJ) on 19 July 1974, for willfully disobeying an order on or about 12 July 1974. His punishment consisted of forfeiture of $70.00 per month for one month, extra duty, and restriction.5.The applicant provided a statement on 25 July 1974, regarding his NJP and stated he thought the penalties were unrealistic and that the Article 15 was given to him under false pretenses. He was preparing for school on 12 July 1974 when Sergeant(SGT) came to the barracks and demanded that the applicant have extra duty at that very moment. The applicant told SGT that he had to take a test. He stated that "he didn’t care whether he I failed or not," but the applicant would take part in the detail at that time. In refusal he walked out and returned with Staff Sergeant who demanded that the applicant come with him and SGT . After refusing he made harassing remarks quoted as "little punk, chump" and others that were unmentionable. With such harassment the applicant believed that the penalties were unjust. Since being at Fort Benjamin Harrison, he found the harassment to be plentiful.6.The applicant accepted NJP under Article 15 of the UCMJ on 8 November 1974 for failing to go at the time prescribed to his appointed place of duty on or about5 November 1974 and behaving disrespectfully towards a superior commissioned officer on or about 6 November 1974. His punishment consisted of forfeiture of $50.00 per month for two months and extra duty.7.He accepted NJP under Article 15 of the UCMJ on 13 May 1975 for failing to obey a lawful order on or about 9 May 1975. His punishment consisted of reduction to private/E-1 and 30 days in Correctional Custody (suspended).8.The applicant’s Enlisted Efficiency Report (EER), dated 14 July1975, states the applicant had proven to be unsatisfactory in all fields of leadership and in training. A statement from his rater indicates the applicant had been counseled numerous times pertaining to his duties, maintenance of uniforms, leaving his appointed place of duty, missing formations, needing haircut, disobeying lawful orders and direct orders.9.On 14 July 1975, applicant’s commander noted the applicant refused to sign his EER, ending in August 1975. The raters of the EER were his Platoon Sergeant and Platoon Leader.10.He accepted NJP under Article 15 of the UCMJ on 15 September 1975 for without authority, failing to go at the time prescribed to his appointed place of duty on or about 8 September 1975. His punishment consisted of forfeiture of $80.00, restriction, and extra duty. The suspension of punishment imposed against the applicant was vacated. The unexecuted portion of the punishment would be duly executed. 11.The applicant's commander notified the applicant on 13 October 1975 that he hadinitiated actions to separate him under the provisions of Army Regulation 635-200(Personnel Separations – Enlisted Personnel), paragraph 13-5b (1), for unsuitability,specifically for inaptitude. He acknowledged receipt on the same date. 12.The applicant consulted with legal counsel on 16 October 1975 and was advised ofthe rights available to him and the effects of a waiver of his rights. He requestedconsideration of his case and, a personal appearance, by a board of officers. Herequested representation by counsel. He elected not to make a statement in his ownbehalf. 13.The applicant's commander formally recommended his separation from service on17 October 1975, under the provisions of Army Regulation 635-200, paragraph 13-5b(1), for inaptitude. As the specific reasons his commander noted, the applicant had beencounseled on several occasions by his platoon sergeant, platoon leader, and thecommander concerning his responsibilities. He had been told how to correct hisuniform, his appearance, job knowledge and performance all without little or noimprovement. 14.The separation authority approved the discharge recommendation on 24 November1975 and directed the applicant be furnished a DD Form 257A (General DischargeCertificate). 15.The applicant accepted NJP under Article 15 of the UCMJ on 2 March 1976 forfailing to obey an order on or about 28 February 1976. His punishment consisted offorfeiture of $80.00. 16.A Board of Officers convened on 5 March 1976, the Board determined the applicantwas undesirable for further retention in the military because of unsuitability with theissuance of a DD Form 256A. Rehabilitation was not deemed possible. 17.On 28 April 1976, the applicant acknowledged there had been a change in hismedical condition since his last separation examination; however, no changes werelisted. 18.The applicant was discharged on 28 April 1976. His DD Form 214 (Report ofSeparation) shows he was discharged under the provisions of Army Regulation 635-200, Paragraph 13-5b. His characterization of service was under honorable conditions.He completed 2 years, 1 month and 1 day of active service this period. It also shows hewas awarded or authorized the National Defense Serve Medal and the ExpertMarksmanship Qualification Badge with Rifle Bar (M-16). 19.On 24 September 2008, the ABCMR considered the applicants request for adischarge upgrade. The Board determined that there was insufficient evidence tosupport granting the requested relief. 20.On 17 October 2012, the ABCMR, notified the applicant his previous request forreconsideration was acted upon in ABCMR Docket Number AR20080009962 on24 September 2008. The decision on the request for reconsideration was the finaladministrative action taken and returned his request without action. 21.On 13 March 2014, the ABCMR, notified the applicant AC97-05298 had beenconsidered by the ABCMR on 26 August 1998. Records show his previous request forreconsideration was acted upon on 24 September 2008. The decision on the request forreconsideration was the final administrative action taken and returned his requestwithout action. 22.On 19 July 2022, a staff member at the Army Review Boards Agency (ARBA)requested the applicant provide a copy of medical documents that support his issue ofPTSD. He did not respond. 23.The applicant provides numerous documents from his military personnel file forconsideration of his request, as well as an Initial PTSD Disability BenefitsQuestionnaire, and a VA Rating Decision letter, dated 8 August 2019, shows a service-connected disability rating of 100 percent for PTSD with major depressive disordereffective 20 January 2017. 24.Army Regulation 635-200 provided the authority for the separation of enlistedpersonnel upon expiration of term of service; the authority and general provisionsgoverning the separation of enlisted personnel prior to expiration of term of service; andthe criteria governing the issuance of Honorable and General Discharge Certificates. a.Chapter 13 of the version in effect at the time provided for the separation ofSoldiers for unsatisfactory performance. b.Paragraph 13-5a of the version in effect at the time provided for the separation ofSoldiers for unfitness (misconduct). c.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 characterand behavior disorders [later deemed personality disorders]. (3)Sub-paragraph (3) applied to those Soldiers being separated for apathy (lackof appropriate interest), defective attitudes, and inability to expend effort constructively. d.The applicant was discharged under the provisions of Army Regulation 635-200,paragraph 13-5b (3). 25.Clemency guidance to the Boards for Correction of Military/Navy Records(BCM/NR) does not mandate relief, but rather provides standards and principles toguide Boards in application of their equitable relief authority to ensure each case will beassessed on its own merits. In determining whether to grant relief BCM/NRs shallconsider the prospect for rehabilitation, external evidence, sworn testimony, policychanges, relative severity of misconduct, mental and behavioral health conditions,official governmental acknowledgement that a relevant error or injustice was committed,and uniformity of punishment. This includes consideration of changes in policy, wherebya service member under the same circumstances today would reasonably be expectedto receive a more favorable outcome. 26.MEDICAL REVIEW: a.The applicant is applying to the ABCMR requesting an upgrade of his under otherthan honorable conditions (UOTHC) discharge. He contends he had mental health conditions that mitigated his misconduct. b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 24 July 1980; 2) He was medically evacuated from Germany to Walter Reed Army Medical Center after two psychiatric inpatient hospitalizations in Germany; 3) Court-martial charges were preferred against him on 26 June 1981 for going AWOL; 4) He was separated on 21 July 1981 under provisions of AR 635 – 200, Chapter 10, in lieu of trail by court-martial. c.The applicant provided several military medical record for review, which areincluded in the ROP. The records show, in part, that the applicant was psychiatrically hospitalized at the Frankfurt Army Regional Medical Center (FARMC) 14 November 1980 to 20 November 1980 subsequent to threatening to kill his 1SG, after the 1SG attempted to awaken him. At the time of his hospitalization the applicant endorsed becoming infuriated by be shaken awake by the 1SG. He later endorsed the shaking triggered a flashback of being beaten by father. The applicant was diagnosed with Emotional Instability and released back to his unit. He was psychiatrically hospitalized again at FARMC on 27 January 1981 with a chief complaint of depression and suicidal ideation. He was diagnosed with Depression with Suicidal Ideation, Situation Stress Reaction severe, and Personality Disorder mixed type. He was medically evacuated from FARMC to WRAMC on or about 2 February 1981. While at WRAMC he was diagnosed with Adjustment Disorder with mixed emotional features, and Other Personality Disorder, inadequate type. He was discharged from WRAMC on or about 10 February with a diagnosis of Inadequate Personality Disorder. d.A review of the VA electronic medical record (JLV) appears to show the applicantis currently not service-connected, however, a recent C&P dated 14 September 2022 shows the applicant will likely be awarded a service-connected diagnosis of Mood Disorder Unspecified. JLV is void of the applicant receiving any treatment at a VA Medical Center, but the C&P shows the applicant has had multiple psychiatric hospitalization (1983, 1986, 1988) since his discharge from service. e.A letter authored by the applicant suggest a history of childhood physical abuseand auditory hallucination (hearing voices), prior to service. The hallucination reportedly stopped during initial entry training and began again after the incident whereby he was shaken awake by his 1SG. The shaking event reportedly triggered a flashback of being beaten by his father. His mental health reportedly continued to deteriorate from there. The applicant contends that while on leave there was “so much going on in my mother’s house I totally forgot I was still in the Army”. He reportedly called the Army Post once he realized he was still in the Army. f.Based on the available information, it is the opinion of the Agency BH Advisor thatthe applicant had a condition that mitigated his misconduct. The applicant military medical records suggest a history of diagnoses while on active duty to include depression with suicidal thought, and a recent VA C&P examination dated 14 September 2022 shows the applicant with a diagnosis of Mood Disorder, unspecified, that appears to be service connected. Kurta Questions: 1.Does any evidence state that the applicant had a condition or experience thatmay excuse or mitigate a discharge? Yes. The applicant military medical recordssuggest a history of diagnoses while on active duty to include depression withsuicidal thought, and recent VA C&P examination dated 14 September 2022shows the applicant with a diagnosis of Mood Disorder, unspecified, that appearsto be service connected. 2.Did the condition exist or experience occur during military service? Yes. Theapplicant was diagnosed with depression with suicidal ideation and otherdisorders while stationed in Germany. 3.Does the condition or experience actually excuse or mitigate the discharge? Yes.The applicant military medical records suggest a history of diagnoses while onactive duty to include depression with suicidal thought, and recent VA C&P examination dated 14 September 2022 shows the applicant with a diagnosis of Mood Disorder, unspecified, that appears to be service connected. The applicant contends while on leave, given all that was going on in his mother’s house, he forgot he was still in the military. Once he remembered he reportedly turned himself in. There is also the possibility the applicant was not motivated to leave his family and return to an environment that contributed to his depression and suicidal ideation. In either instance, memory problems, avoidant behavior, and diminished motivation are sequelae of mood disorders, and would be mitigating factors of his misconduct. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, 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 medical reviewing official. Based upon the findings of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant's narrative reason for separation. The Board found that the current narrative reason for separation reflected on the applicant's DD Form 214 accurately depicts the justification and reason for separation. 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 to amend the decision of the ABCMR set forth in the following Dockets Number: •AR20080005441 on 16 June 2008 •AR20080009962 on 24 September 2008 •AR20120017458 on 17 October 2012 •AR20140003372 on 13 March 2014 Microsoft Office Signature Line... 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 635-200 sets forth the basic authority for the separation of enlistedpersonnel. The version in effect at the time provided that: a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.Chapter 13 established policy and provided procedures and guidance foreliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 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 characterand behavior disorders [later deemed personality disorders]. (3)Sub-paragraph (3) applied to those Soldiers being separated for apathy (lackof appropriate interest), defective attitudes, and inability to expend effort constructively. 2.Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that anapplicant seeking corrective action by ARBA is provided a copy of all correspondenceand communications, including summaries of verbal communications, with any agenciesor persons external to agency or board, or a member of the staff of the agency orBoard, that directly pertains to or has material effect on the applicant's case, except asauthorized by statute. 3.The Secretary of Defense directed the Service Discharge Review Boards (DRBs)and Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014,to carefully consider the revised PTSD criteria, detailed medical considerations, andmitigating factors when taking action on applications from former service membersadministratively discharged UOTHC and who have been diagnosed with PTSD by acompetent mental health professional representing a civilian healthcare provider inorder to determine if it would be appropriate to upgrade the characterization of theapplicant's service. 4.The Under Secretary of Defense for Personnel and Readiness provided clarifyingguidance to Service DRBs and Service BCM/NRs on 25 August 2017. Thememorandum directed them to give liberal consideration to veterans petitioning fordischarge relief when the application for relief is based in whole or in part on mattersrelating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexualassault, or sexual harassment. Standards for review should rightly consider the uniquenature of these cases and afford each veteran a reasonable opportunity for relief even ifthe sexual assault or sexual harassment was unreported, or the mental health conditionwas not diagnosed until years later. Boards are to give liberal consideration to Veteranspetitioning for discharge relief when the application for relief is based in whole or in parton those conditions or experiences. The guidance further describes evidence sourcesand criteria and requires Boards to consider the conditions or experiences presented inevidence as potential mitigation for misconduct that led to the discharge. 5.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-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 andprinciples 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 ofservice 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//