IN THE CASE OF: BOARD DATE: 3 May 2023 DOCKET NUMBER: AR20220010118 APPLICANT REQUESTS: the daughter of a separated service member (SM), requests an upgrade of her father’s under other than honorable conditions character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * California General Durable Power of Attorney FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, the request for an upgrade is based on the fact that her father, could not shoot the rifle properly. Her father enlisted in the Army to help his country but did not know that the shock of shooting as a rifleman would affect his stress levels. the applicant marked “PTSD and Other Mental Health” on the application. 3. The applicant provides a [State] General Durable Power of Attorney, dated 29 July 1920, reflects the service member (SM) appointed his daughter, the applicant, to act on his behalf, to manage, dispose of, sell, and convey his real and personal property, and to use his property as security if she borrows money on his behalf. 4. A review of the service member’s (SM) service record shows: a. He enlisted in the Regular Army on 3 January 1972. b. Summary Court-Martial Order Number 41, dated 9 March 1972, shows the SM was arraigned and tried before a Summary Court-Martial. He was charged for violations of the Uniform Code of Military Justice (UCMJ) and pled as follows: * (Guilty) Article 91, insubordinate conduct toward a noncommissioned offer on or about 1 March 1972 * (Not Guilty) Article 128, assault on a noncommissioned officer on or about 1 March 1972 * (Guilty) Article 134, communicating a threat to a noncommissioned officer on or about 1 March 1972 c. He accepted nonjudicial punishment as follows: * On 5 April 1972, for absenting himself from his unit without authority from on or about 2 April 1972 until on or about 3 April 1972 * On 9 June 1972, for disobeying a lawful ordered issued by a noncommissioned officer on or about 2 June 1972 d. On 6 April 1972, the SM’s commander submitted a request to discharge the SM under the provisions of Army Regulation (AR) 635-212, (Personnel Separations – Unfitness and Unsuitability), paragraph 6a(1), as his performance of duty had been totally unsatisfactory and indicative of further malicious acts of the type which would possibly result in what is commonly known as “fraggings” of officers and noncommissioned officers. e. On 12 June 1972, the SM acknowledged receipt of the commander's intent to separate him under the provisions of AR 635-212, paragraph 6(a)(1), for unfitness. He was advised of the basis for the action and that he may receive an undesirable discharge. He acknowledged and * waived consideration of his case and personal appearance before a board of officers * elected not to submit statements in his own behalf * waived representation by counsel, appointed and/or civilian counsel * understood he may be deprived of many or all rights as a Veteran and may encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him * further understood, as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * understood that he may, up until the date the discharge authority directs or approves his discharge, withdraw this waiver and request that a board of officers hear his case f. On 15 June 1972, the separation authority approved the SM's discharge, under the provisions of AR 635-212, Separation Program Number (SPN) Code 28B, unfitness and further directed the SM be furnished an undesirable discharge certificate and an immediate reduction of enlisted man to the lowest enlisted grade. a. The SM was discharged on 27 June 1972. His DD Form 214 shows he was discharged on 27 June 1972, under the provisions of AR 635-212 (Personnel Separations – Unfitness and Unsuitability), SPN Code 28B, unfitness, with a character of service of under other than honorable conditions. He served 5 months and 3 days of net service this period. He had 22 days of lost time from 9 March 1972 until 30 March 1972. 5. The applicant was asked, via letter dated 5 December 2022, from Case Management Division, to provide a copy of the medical documents that support his issue of post-traumatic stress disorder (PTSD). As of the date of this writing, medical documents were not submitted. 6. There is no evidence that the SM applied to the Army Discharge Review Board for review of his discharge within the board’s 15-year statute of limitations. 7. AR 635-212 (Personnel Separations – Unfitness and Unsuitability) establishes policy and provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. 9. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. Background: The daughter of a separated service member (SM) is requesting an upgrade of her father’s Under Other than Honorable Conditions character of service to Honorable. The daughter contends that “PTSD and other mental health” concerns mitigate her father’s discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The SM enlisted into the RA on 3 January 1972. * A summary court martial dated 9 March 1972 shows the SM was arraigned and tried for insubordinate conduct toward a noncommissioned officer (found guilty), assault of a noncommissioned officer (found not guilty) and communicating a threat to a noncommissioned officer (threatened to kill him; found guilty), all on 1 March 1972. He was sentenced to be confined at hard labor for 30 days. In addition, he accepted nonjudicial punishment on 5 April 1972 for being AWOL 2 April 1972 and for disobeying a lawful order on 2 June 1972. * On 6 April 1972 the SM’s commander requested discharge under AR 635-212 (unfitness and unsuitability), paragraph 6a (1) as his performance of duty had been “unsatisfactory and indicative of further malicious acts of the type which would possibly result in what is commonly known as “fraggings” of officers and noncommissioned officers.” * Applicant was discharged 27 June 1972 under AR 635-212. His characterization of service was UOTHC. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the completed DD Form 293, the ABCMR Record of Proceedings (ROP), DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA, though minimal records were available. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The SM’s daughter (applicant) asserts that her father’s misconduct was mitigated by PTSD and him being unable to shoot properly. She contends that he did not know that the “shock of shooting as a rifleman would affect his stress levels.” The applicant stated she was told by her father than he left the Army due to having complications with his rifle. Records, summarized above, detail significant misconduct and there is no mention in his record of difficulty with firing his weapon. There is insufficient evidence provided to support that the applicant was ever seen or treated for PTSD, or any other mental health condition, while in the service. Per a review of the applicant’s electronic health record (EHR), the SM has not been diagnosed with any mental health conditions, though he is not eligible to be seen at the VA and only has had a few encounters. No additional medical or mental health records were provided to support the contention of PTSD or other mental health conditions. There is no reported history of the applicant being exposed to combat or a potentially traumatic training event. In summary, at this time, there is insufficient evidence to suggest the applicant experienced any mental health concerns or mitigating experiences prior to his charges. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his bad conduct. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts the SM had “PTSD and other mental health” concerns. 2. Did the condition exist or experience occur during military service? Yes, the applicant is contending that her father had a stress response to shooting a rifle. 3. Does the condition or experience actually excuse or mitigate the discharge? No: The applicant asserts mitigation due to PTSD or other mental health concerns at the time of service. This assertion alone is worthy of consideration by the Board. However, there is insufficient evidence to suggest the SM experienced any mental health concerns prior to his charges, during his time in service, nor after his time in service. There is also no indication that a mitigating experience occurred while he was on active duty. Of note, going AWOL is an avoidance behavior and disrespect toward leadership is a symptom of increased reactivity and arousal, all of which can be associated with the natural history and sequelae of PTSD. However, there is no nexus between PTSD and assaulting another soldier or threatening his life. This misconduct is not part of the natural history or sequelae of the alleged mental health conditions. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. And finally, being insubordinate, getting into fights and threatening other soldiers is not sufficient evidence to establish PTSD or other mental health conditions. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his misconduct. The Board found insufficient evidence provided to support that the applicant was ever seen or treated for PTSD, or any other mental health condition, while in the service. Evidence in the record show no additional medical or mental health records were provided to support the contention of PTSD or other mental health conditions. 2. The applicant provided no post-service achievements or character letters of support, the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the misconduct. During deliberation, the Board determined in the 5 months and 3 days of net service this period, there was no reported history of the applicant being exposed to combat or a potentially traumatic training event. The Board noted, at this time, there is insufficient evidence to suggest the applicant experienced any mental health concerns or mitigating experiences prior to his charges. The Board agreed that the applicant’s discharge characterization is appropriate and denied relief. 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, U.S. 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 635-212 (Personnel Separations – Unfitness and Unsuitability), in effect at the time, establishes policy and provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. Paragraph 6 states an individual was subject to separation for: a. unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit- forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. b. unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (4) alcoholism; and (5) enuresis 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), replaced Army Regulation 635-212, and also sets forth the basic authority for the separation of enlisted personnel. 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. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge. 6. 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 (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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. 7. 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) AR20220010118 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1