IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220006586 APPLICANT REQUESTS: * reconsideration of his previous request for an upgrade to his characterization of service from under conditions other than honorable to under honorable conditions (general) * An appearance before the board (via video/telephone) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 16 March 2022 * DD Form 149 (Application for Correction of Military Record), 12 March 2022 * Applicant's self-authored statement, undated * Certificate of Baptism, * Leave and Earnings Statement, 20 October 1972 * DD Form 214 (Report of Separation from Active Duty), 17 July 1974 * Department of Veteran Affairs (VA) Administration Decision letter, 18 March 1975 * Certificate, Adult Education Division, 25 January 1978 * Certificate of marriage, * Letter from church, 14 October 1999 * Applicant's request for dissolution, * Results of dissolution, * Certificate of marriage, * Department of Veteran Affairs (VA) letter, 5 August 2013 * Letter from legal counsel, 19 May 2016 * Supporting statement, 17 February 2022 * Army Review Board Agency (ARBA) letter, 2 September 2022 * Email, 9 September 2022 * Medical record notes, 12 September 2022 * Email, 15 September 2022 * Supporting statement, undated * Supporting statement, undated FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002083030 on 28 August 2003. 2. The applicant states, in effect, he feels his discharge was unjust because he was not afforded the opportunity to be represented by military legal counsel after his conviction for drug possession while stationed in Okinawa, Japan. He states that he got into drugs upon his return from Vietnam because he had a hard time dealing with the death of friends during the war. His unit reprimanded him for his drug use, but never helped him seek help or treatment. He states he was arrested and detained on two separate occasions for possession of heroin and marijuana. The applicant was ordered to appear in a Japanese court where he was represented by a Japanese attorney and was sentenced to one year of hard labor in a Japanese prison and was discharged thereafter. He states he was advised he would be given a general discharge and would have never signed his discharge papers if he had realized he was being discharged under conditions under other than honorable. He states he has never been involved with heroin or any drugs in his adult life. Since his discharge he has remarried twice, worked as plumber and car salesman, and tries to be a good neighbor and friend to others. 3. The applicant enlisted in the regular Army on 16 July 1971. He served in Okinawa, Japan, from on or about 11 December 1971 to on or about 9 June 1974. 4. The applicant received company grade non judicial punishment (NJP) on 19 March 1973 for failure to obey a lawful general regulation. His punishment consisted of reduction to the rank of Private First Class (PFC) (suspended for 90 days) and forfeiture of $50.00 per month for one month. 5. The applicant received field grade NJP on 19 April 1973 for absenting himself from his unit on or about 6 April 1973 to 18 April 1973. His punishment consisted of reduction to the grade E-2, forfeiture of $75.00 per month for two months, and 30 days extra duty. 6. Special Court Martial Order 7, dated 7 September 1972, shows the applicant was convicted for two specifications of absenting himself from his unit from on or about 13 June 1973 to 15 June 1973 and from on or about 15 June 1973 to on or about 2 July 1973. His sentence consisted of reduction to the rank/grade of private (PVT)/E-1, forfeiture of $75.00 per month for two months, confined at hard labor for 14 days (suspended for 4 months), and 30 days restriction. The sentence was adjudged and ordered to be duly executed on 7 September 1973. 7. Court proceedings dates 25 October 1973, show the applicant was found convicted in a Japanese court for possessing 0.118 grams of a compound containing hydrochloric acid diacetyl morphine, a narcotic drug (heroin), in his barracks room in Naha City, Okinawa on 11 May 1973. His sentence consisted of confined at forced labor for one year and payment of all court costs. 8. The applicant's immediate commander submitted a formal recommendation for discharge under the provisions of Army Regulation (AR) 635-206 (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion), on 1 November 1973. The commander's reasons for the recommended action: the applicant was convicted by the Japanese government for illegal possession of heroin and was sentenced to one year at forced labor. Additionally, he recommended the applicant be issued an undesirable discharge. 9. The applicant's intermediate commander recommended approval of the discharge under the provisions of AR 635-206, section 6, on 30 November 1973. 10. The applicant's senior commander recommended approval of the discharge under the provisions of AR 635-206, paragraph 33(a) on 4 December 1973. He noted his recommendation was missing a statement from the applicant indicating he had been advised of his rights due to the fact the applicant was in confinement. Additionally, he recommended the applicant be issued an undesirable discharge. 11. The applicant underwent a medical examination for the purpose of separation on 14 December 1973. The doctor did not note any medical issues and cleared him for separation. 12. The applicant underwent a mental status evaluation on 14 December 1973. The doctor did not note and mental issues and found he had the mental capacity to understand and participate in board proceedings. 13. On 14 January 1974, the applicant’ was notified that he was being recommended for discharge under the provisions of AR 635-206, because of his conviction by a foreign tribunal. The applicant was advised he had the right to consult with counsel, to submit statements on his own behalf, and to waive his rights in writing. 14. On 24 June 1995, the applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him for civil conviction by court under the provisions of AR 635-206. a. He requested appointment of a military counsel to represent him, consideration of his case by a Board of officers, and elected not to submit statements on his own behalf. b. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 15. On 4 February 1974, the applicant was notified by the Office of the Staff Judge Advocate to appear before a board of officers to hear and consider the facts and recommendations as to whether or not he should be discharged from service under the provisions of AR 635-206 because of his conviction of crimes by a Japanese court. 16. A board of officer's convened on 22 February 1974 and found the applicant undesirable for further retention in service because of his conviction by civil court. The board of officers recommended the applicant be separated from service and be issued an undesirable discharge certificate. 17. The applicant received company grade NJP on 26 June 1974 for absenting himself from his unit on or about 19 June 1974 to on or about 26 June 1974. His punishment consisted of an oral reprimand and forfeiture of $80.00 pay per month for one month. 18. On 2 August 1995 the separation authority approved the recommended discharge, under the provisions of AR 635-206, section 6, and directed the applicant be issued an undesirable discharge certificate upon his release from confinement. 19. The applicant was discharged on 17 July 1974. His DD Form 214 shows he was discharged under the provisions of AR 635-206, section 6, in the rank/grade of PVT/E-1, and his service was characterized as under conditions other than honorable (Separation Code JKB, Reentry Code 3). He completed 2 years, 4 months, and 25 days of active service with 237 days lost time. Additionally, his DD Form 214 does not list any personal decorations or awards. 21. There is evidence the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. A letter dated 25 April 1979 shows the ADRB notified the applicant that it was determined he was properly discharged and advised him that his request for a change in the type and nature of his discharge had been denied. 22. A letter dated 9 September 2003 shows the ABCRM reviewed the applicant's case and notified him that his application had been denied and found his separation from service was accomplished in compliance with applicable regulations and he received the appropriate discharge. 23. The applicant's request contained forty-three pages of personal documents such as marriage certificates, education certificates, church notes, medical notes, request for dissolution, and supporting statements. The forty-three-page application is available for the board to review in the supporting documents file. 24. AR 635-206, section 6, prescribes procedures for processing cases of individuals who, during their current term of active military service, have been initially convicted or adjudged juvenile offenders. 25. MEDICAL REVIEW: After reviewing the additional evidence submitted by the applicant and documentation in JLV, it is the opinion of this medical advisor that the evidence presented is not sufficient to warrant an amendment to the Boards previous decision. A review of records showed the applicant with a history of BH-related care with the VA that began on or about 24 September 2002 whereby he reported depressive symptoms with onset secondary to an automobile accident, experienced post service. The applicant was diagnosed with adjustment disorder, and over the course of his years in BH treatment, the diagnosis was amended to reflected MDD. MDD was noted to be secondary to pain related to back surgery, physical limitation, a diagnosis cirrhosis, and other medical related concerns. While the applicant’s problem list does include a diagnosis of PTSD, there is no indication in the record the applicant was properly assessed for the disorder, met diagnostic criteria, or that it was related to his time in service. With the exception of a single encounter note dated 9 September 2022, the applicant’s records were void of a PTSD diagnosis. Records showed that during the 9 September encounter, the applicant approached his primary care provider for assistance with completing a VA request for benefits for PTSD. After the applicant made the request, the provider added PTSD to the applicant’s problem list. It should be noted the applicant was seen by said provider on numerous occasions prior to 9 September 2022, and encounter notes related to those visits were void of mention of PTSD. The applicant wasn’t seen by the provider again after the 9 September encounter, and JLV was void of the diagnosis appearing in any of the applicant’s BH encounter notes prior to or subsequent the 9 September 2022 encounter. Given the applicant was found to not have a mental health diagnosis upon separation, and in absence of sufficient documentation establishing the applicant currently meets or met diagnostic criteria for PTSD related to his time in service, there is insufficient evidence to establish PTSD was a mitigating factor in the applicant’s misconduct. BOARD DISCUSSION: 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 Board’s Medical Advisor. The Board found the documentation of post-service achievements provided by the applicant insufficient in support of a clemency determination. 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 PTSD. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002083030 on 28 August 2003. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-206, in effect at the time, provided regulations for administrative separation or retention of enlisted personnel who have committed an act of misconduct. a. Paragraph 24 states, individuals who have been convicted by domestic or foreign courts and the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention is neither practicable nor feasible, a recommendation for discharge may be submitted. Normally, an individual will be given an undesirable discharge, unless the particular circumstances of the case warrant an honorable or general discharge. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006586 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1