IN THE CASE OF: 
BOARD DATE: 26 May 2023 
DOCKET NUMBER: AR20220010253 

APPLICANT REQUESTS: Reconsideration of his previous request for affirmation of his under honorable conditions (general) discharge. 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Review of Discharge) 

. 
DD Form 214 (Report of Separation from Active Duty) 

. 
DD Form 215 (Correction to DD Form 214) 


FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120013015 on 12 February 2013. 

2. 
As a new argument the applicant states his discharge was decided due to him being absent without leave (AWOL). He wants to clarify that he went on leave and thought his family was going to help him pay for a ticket back to Fort Sill, OK. He called his unit and was told to wait since his leave was not up. He waited the appropriate time and called and was told that his time to return had passed. He served six days in jail for being AWOL and was returned to military custody. He was disciplined and deployed to Vietnam afterwards. He was discharged from Vietnam with an other than honorable discharge. 

3. 
On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 

4. 
The applicant enlisted in the Regular Army on 13 August 1969 [DD Form 214 shows 13 September 1969] for a 2-year term of service. He served in Vietnam from 30 May1970 to 28 October 1970. 

5. 
Before a special court-martial on or about 26 February 1970, at Fort Sill, OK, the applicant was found guilty of being AWOL from on or about 3 January 1970 through on 

or about 2 February 1970. The sentence was approved on 4 March 1970. The court sentenced him to confinement at hard labor for two months and forfeiture of $35.00 pay for four months. 

6. 
The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), 20 May 1970 for being AWOL from on or about 15 May 1970 to on or about 19 May 1970. His punishment included reduction to the grade of Private/E-1. 

7. 
The applicant again accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on 7 August 1970 for the following offenses: 

. 
being disrespectful towards his superior commissioned officer on or about 13 August 1970 

. 
failing to obey a lawful order given by a superior commissioned officer on or about 13 August 1970 

. 
unlawfully striking a superior noncommissioned officer on the face on or about 13 August 1970 

. 
failing to obey a lawful order, issued by a superior commissioned officer on or about 13 August 1970 



8. 
Court-martial charges were preferred against the applicant on 27 September 1970 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: 

. 
failure to go at the time prescribed to his appointed place of duty, on or about 20 August 1970 and 23 August 1970 

. 
being disrespectful in language towards a superior commissioned officer, on or about 24 August 1970 and 25 August 1970 

. 
failure to obey a lawful order issued by superior commissioned officer, on or about 22 August 1970 

. 
failure to obey a lawful order issued by a non-commissioned officer, on or about 25 August 1970 

. 
having been duly restricted to the limits of the company area, break said restriction, on or about 25 August 1970 



9. 
Additional court-martial charges were preferred against the applicant on 11 September 1970 for violations of the UCMJ. His DD Form 458 shows he was charged with: 

. 
striking a superior noncommissioned officer on the forehead with his fist, on or about 8 September 1970 

. 
being disrespectful in language towards his superior noncommissioned officer, on or about 8 September 1970 



10. 
The applicant consulted with legal counsel on or about 24 September 1970 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 bad conduct or dishonorable 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. 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 on his own behalf. 
11. 
The separation authority approved the applicant's request for discharge on 21 October 1970, under the provisions of Army Regulation 635-200, Chapter 10. He directed the applicant be reduced to the lowest enlisted grade and the issuance of an DD Form 258A (Undesirable Discharge Certificate). 

12. 
His DD Form 214 shows he was discharged on 28 October 1970, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number 246A (for the good of the service) under the Department of Defense (DoD) Special Discharge Review Program (SDRP). His service was characterized as Under Other Than Honorable Conditions (UOTHC). He was credited with 1 year, 1 month, and 11 days of net active service, with 35 days of lost time. 

13. 
The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either under honorable conditions or honorable be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 

14. 
Public Law 95-126 was enacted in October 1978. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration of all discharges previously upgraded under the DoD SDRP was required using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to Department of Veterans Affairs (VA) benefits unless they had been entitled to such benefits before their DoD SDRP review 

15. 
In accordance with the provisions of the DoD SDRP, the applicant petitioned the Army Discharge Review Board (ADRB) for upgraded of his discharge. His request was approved on 18 May 1977, and his characterization of service was upgraded to under honorable conditions (general). His previous DD Form 214 was voided, and a new DD Form 214 was created to reflect this change. 

16. 
The applicant's discharge was re-reviewed in accordance with the provisions of the DoD SDRP. The ADRB voted to not affirm his discharge under the uniform standards. A DD Form 215 (Correction to DD Form 214) was issued that shows the following amendments in: Item 27 (Remarks) – "DISCHARGE REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHANGE IN CHARACTERIZATION OF SERVICE IS WARRANTED UP DOD SDRP 4 APR 77." 

17. 
The applicant petitioned the ABCMR for affirmation of his upgraded discharge. After careful review and consideration on 12 February 2013, the ABCMR found the evidence presented did not demonstrate the existence of a probable error and denied his request. 

18. 
The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 

19. 
In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 

20. 
MEDICAL REVIEW: 


a. 
Background: The applicant is requesting reconsideration of his previous request for affirmation of his Under Honorable Conditions (general) discharge. The applicant contends that PTSD was a mitigating factor in his 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: 


. 
Applicant enlisted into the RA on 13 August 1969. 

. 
Applicant served in the Republic of Vietnam from 30 May 1970 to 28 October 1970. 

. 
Before a special court-martial on or about 24 February 1970 the applicant was found guilty of being AWOL from on or about 3 January 1970 through 2 February 1970. 

. 
On 20 May 1970, applicant accepted non judicial punishment (NJP) for being AWOL from 15 May to 19 May 1970. 

. 
On 17 August 1970, he accepted NJP for several additional offenses to include being disrespectful towards his superior commissioned officer, failing to obey a lawful order given by a superior commissioned officer, unlawfully striking a superior noncommissioned officer (NCO), and failing to obey a lawful order given by a superior commissioned officer all on or about 13 August 1970. 

. 
On 27 August 1970, court-martial charges were preferred. His charge sheet included failure to report, being disrespectful in language, failure to obey an order by a commissioned officer, failure to obey an order by an NCO, and breaking restrictions. Additional charges were preferred on 11 September 1970 for striking a superior NCO on the forehead with his fist and being disrespectful in language. 

. 
The applicant requested discharge under AR 635-200, Chapter 10, in lieu of trail by court martial. The applicant was discharged on 28 October 1970 with an Under Other Than Honorable Conditions discharge. 

. 
Under the provisions of the DoD SDRP, the applicant’s petition for an upgrade was approved 18 May 1977, and was upgraded to Under Honorable Conditions (general). However, it was re-reviewed in 1978 and the previous upgrading was not affirmed. He petitioned the ABCMR for affirmation of his upgraded discharge and was denied 12 February 2013. 

c. 
Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), DD Form 214, DD Form 215, 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. Lack of citation or discussion in this section should not be interpreted as lack of consideration. 

d. 
Applicant asserts that he was following his unit’s directions when he was charged with being AWOL. He also states that being AWOL was the reason for his discharge, though his records reflect numerous other charges during his last preferred court martial, none of which was him being AWOL (though he did have two episodes of being AWOL previously). He also asserts that his mental health, particularly PTSD, is a mitigating factor to his discharge. In a memo from his commanding officer 28 


September 1970, it states that there was no reason to believe that the applicant was mentally defective, deranged or otherwise abnormal during the time of his misconduct. In general, he was summarized as having constant disciplinary problems, possible racial prejudices, inability to tolerate authority and constant mistrust of his fellow soldiers. Though no mental status evaluation was present in his records, his behavioral issues at the time appeared more characterological in nature though could also be prodromal symptoms of paranoid schizophrenia. However, there was no evidence of a mental health diagnosis, nor mental health treatment while he was in the service. There were no military medical records provided to support PTSD as a mitigating factor, though that is to be expected given the era of service. 
e. 
Since his discharge, the applicant has received care from the VA. Several mental health disorders are currently listed on his VA problems list, to include Paranoid Schizophrenia, Cocaine abuse in remission, and suicide attempt. Also, he has been previously diagnosed with Major Depression. The applicant is 40% service connected; however, his service connection is only related to physical health. The first mental health note in his electronic health record (EHR) is from 25 November 2002 and indicates a long history of mental illness to include numerous hospitalizations. Applicant engaged with the VA consistently throughout the early 2000’s, though primarily engaging physical health care and some social work/case management type appointments. In 2010 he was seen for a psychiatry assessment, where his paranoid schizophrenia was listed as first diagnosed 35 years ago (per patient history; hence approximately around 1975). From 2010 to present, he has consistent engagement with Mental Health Intensive Case Management (MHICM) through the VA. In summary, it appears that he was not diagnosed with mental health concerns until years after his discharge, and there is no indication that he was diagnosed with PTSD during service nor after his discharge. In his VA medical record (28 April 2004) he did state he’d seen a psychiatrist while in the service, but again no records were made available for review. And thus far, none of his mental health conditions have been service connected. 

f. 
Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is no evidence to support the applicant had PTSD at time of service, though there is some evidence that he may have been exhibiting prodromal symptoms of schizophrenia. However, he contends his misconduct was related to PTSD, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 


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 he had a condition that mitigates his discharge (PTSD). 

2. 
Did the condition exist or experience occur during military service? Yes, it is asserted that the mitigating condition was present at the time of service. 

3. 
Does the condition or experience actually excuse or mitigate the discharge? Partial. There is minimal evidence beyond self-report that the applicant was experiencing a mental health condition at his time of misconduct, as no medical records from his time in service were provided and no medical records since his discharge state that his current mental health conditions were present during his time in service. The applicant’s misconduct included some behaviors consistent with the natural history and sequelae of PTSD (avoidance as seen through failure to report, AWOL and increased arousal and reactivity as seen through irritability, disrespect/insubordination). There is a nexus between these symptoms/experiences and the misconduct leading to his discharge. However, there is no nexus between physical violence and PTSD. This misconduct is not part of the natural history or sequelae of the alleged mental health condition. Typically, it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. Of note, approximately 5 years after discharge the applicant was reportedly diagnosed with paranoid schizophrenia. There is no concrete evidence symptoms related to this disorder were present at time of service, nor that they were impacting his ability to distinguish right from wrong, however some of his behaviors could also be consistent with this disorder. However, these behaviors are not sufficient to establish a history of a condition during active service. That said, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 conclusions of the advising official. The Board noted there is no nexus between physical violence and PTSD. Furthermore, it does not affect one’s ability to distinguish right from wrong and act in accordance with the right. 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 upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
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 Docket Number AR20120013015 on 12 February 2013. 
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 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 

2. 
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 provided 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, an UOTHC discharge was normally considered appropriate. 


3. 
On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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. 

4. 
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; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are 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 misconduct that led to the discharge. 

5. 
On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 
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. 


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