IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220010801 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AC87-09192 on 21 September 1988. 2. The issues/conditions related to his request are post-traumatic stress disorder (PTSD) and reprisal. The applicant states he feels that his discharge was unjust and harsh. He was discharged for getting into a confrontation with a Korean Augmentee to the U.S. Army (KATUSA) during which the KATUSA grabbed a stack of M-16s, swung them around and hit him on his shoulder which he's still trying to manage today. His performance of duties was outstanding and a good Soldier. The KATUSA got angry and just lost all his senses as if he was trying to kill the applicant. Had he not dodged to his right a little the KATUSA would have hit him in his head. He feels his discharge should be upgrade to honorable because there are a lot of benefits that he would have qualified for that now he cannot receive and has had to pay for on a fixed income. He is disabled with some serious health issues. He has never done anything like this before. It was his intention to stay in the Army for 20 years. 3. The applicant enlisted in the Regular Army on 10 June 1980 for three years. He was promoted to the rank/grade of private first class/E-3 on 10 June 1981. 4. The applicant served in Korea from 20 January 1982 through 7 December 1982. 5. The applicant was counseled on numerous occasions between 1 February 1982 and on 20 November 1982, for: * Good duty performance and appearance * Missing a Military Air Command (MAC) flight * Disrespect to a noncommissioned officer (NCO) * Disobeying a direct order * Missing formations (three times) * Being asleep in bed instead of in formation 6. An incident report shows on 30 April 1982 a Korean female related to the Korean National Police (KNP) that the applicant had struck her numerous times while they were involved in a dispute about YOBO fees at the Big Sam Club. Military Police (MP) responded to the incident, but the applicant had left the area. On 1 May 1982 reported to the KNPs that she knew where the applicant was. The KNP and MP escorted the applicant to the KNP station, where the KNP questioned the applicant and and later released the applicant to the MP with no formal charges pending. The applicant was transported to the Provost Marshall Officer and later released to his unit. 7. The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 13 May 1982 for violation of a lawful general regulation by wrongfully failing to have in his possession an authorized Armed Forces Liberty Pass, while absent from the installation Camp Stanley, Korea where he was billeted on or about 2 May 1982 while in an off-duty status. His punishment consisted of reduction to grade private 2/E-2, extra duty, and restriction. 8. The applicant underwent a physical examination for separation on 3 November 1982. Item 74 (Summary of Defects and Diagnoses) shows he was diagnosed with primary syphilis at the time. The applicant was qualified for administrative separation. 9. On 20 November 1982, the applicant's immediate commander informed him that he intended to recommend him for elimination from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separation-Enlisted Personnel), Chapter 13, for unsatisfactory performance. The reasons for the proposed action were the unsatisfactory performance of his duties, caused in part by his negative attitude, his contempt for military bearing and discipline, and his unwillingness to abide by Army regulations or to adapt to the standards of conduct required by the U.S. Army. The applicant was advised of his rights and that he may expect to encounter substantial prejudice in civilian life. The applicant acknowledged receipt the same day. 10. The applicant consulted with legal counsel on 23 November 1982 and was advised of the basis for the contemplated action, the rights available to him, and the effect of action taken by him in waiving his rights. He waived consideration of his case by a board of officers and waived personal appearance. a. He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition was issued to him. b. He submitted a statement in his own behalf in which he states he did not think he should be chaptered out of the Army because he felt he deserved another chance for the mistake he made. He knew his military performance had not been up to standards. He discussed his incidents and counseling's for various infractions and the reasons for the incidents. He stated that if he was not chaptered, he would continue to Soldier to the best of his abilities for the rest of the time he was in the U.S. Army. 11. The Report of Mental Status Evaluation dated 22 November 1982, shows the applicant did not have significant mental illness, was able to distinguish right from wrong, was mentally responsible, was able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met retention standards. 12. The applicant's commander formally recommended the applicant's discharge under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His commander stated he had substandard duty performance, displayed a negative and counterproductive attitude, and failed to complete his assigned tasks in a satisfactory manner. He displayed contempt for the standards of conduct and regulations of the U.S. Army. 13. The separation authority approved the discharge recommendation, directed the issuance of a General Discharge Certificate (DD Form 257A), and determined the applicant would serve his remaining obligation in the Individual Ready Reserve. 14. The applicant was Released from Active Duty (REFRAD) on 8 December 1982 and transferred to the United States Army Reserve Control (USAR) Group (Annual Training), Saint Louis, MO. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was REFRAD under the provisions of Army Regulation 635-200, Chapter 13, with Separation Program Designator code LMJ for unsatisfactory performance. His characterization of service was under honorable conditions, general. He completed 2 years, 5 months, and 28 days net active service. He had 1 day of lost time on 5 November 1981. 15. Orders D-06-038737 issued by, USAR Personnel Center, Saint Louis, MO on 4 June 1986, discharged the applicant from the Ready Reserve, effective date 9 June 1986 with a service characterization of under honorable conditions, general. 16. On 20 July 1897, the Army Discharge Review Board (ADRB) determined the applicant was properly and equitably discharged and denied his request for a change in the character and or reason of his discharge. 17. On 21 September 1988, the ABCMR considered the applicant's petition and determined that it was not submitted within the time required. The applicant had not presented, and the records do not contain sufficient justification to conclude that it would be in the best interest of justice to excuse the failure to file within the time prescribed by law. On 2 November 1988, the USAR Personnel Center, St. Louis, MO letter reiterated the above. 18. On 9 January 2023, a member of the Army Review Boards Agency requested the applicant provide a copy of the Department of Veterans Affairs or any other medical documents that support his PTSD condition. As of 7 June 2023, the applicant provided no response. 19. Army Regulation 635-200, Chapter 13, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions, general. 20. 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. 21. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request to upgrade his under honorable conditions, general, to honorable. He contends his misconduct was related to PTSD b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 10 June 1980; 2) The applicant served in Korea from 20 January 1982 through 7 December 1982; 3) The applicant was counseled on numerous occasions between 1 February 1982 and on 20 November 1982, as outlined in the ROP; 4) An incident report shows on 30 April 1982 a Korean female SSK related to the Korean National Police (KNP) that the applicant had struck her numerous times while they were involved in a dispute about YOBO fees at the Big Sam Club; 5) The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 13 May 1982 for violation of a lawful general regulation by wrongfully failing to have in his possession an authorized Armed Forces Liberty Pass, while absent from the installation Camp Stanley, Korea where he was billeted on or about 2 May 1982 while in an off-duty status; 6) On 20 November 1982, the applicant's immediate commander informed him that he intended to recommend him for elimination from the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separation-Enlisted Personnel), Chapter 13, for unsatisfactory performance; 7) The applicant was Released from Active Duty (REFRAD) on 8 December 1982 and transferred to the United States Army Reserve Control (USAR) Group (Annual Training), Saint Louis, MO. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was REFRAD under the provisions of Army Regulation 635-200, Chapter 13, with Separation Program Designator code LMJ for unsatisfactory performance. c. The VA electronic medical record, JLV, ROP, and casefiles were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s casefiles was a Report of Mental Status Evaluation, dated 22 November 1982, that showed the applicant psychiatrically cleared for administrative separation, and a Standard Form 88 (Report of Medical Examination), dated 3 November 1982, that showed the applicant medically qualified for administrative separation. No other military BH-related records were provided for review. d. A review of JLV showed the applicant 40 SC for physical disabilities. The applicant does have a BH-related treatment history with the VA; however he does not have a BH-related SC disability. Records suggest the applicant’s first engaged the VA for treatment at the Northern California VA on 20 February 2007, whereby he was enrolled in the substance abuse treatment program (SATP) with a diagnosis of Polysubstance Dependence. Records suggest the applicant engaged in the SATP through November 2007. The applicant next, and only additional, BH-related engagement occurred on 23 May 2023 in the form of a consultation request for treatment for methamphetamine dependence. Records showed the applicant was also enrolled in the Homeless Veteran’s Program, on various occasions between February 2007 and August 2021. Records were void of documentation of a PTSD diagnosis for the applicant. No hardcopy civilian BH records were provided for review. e. The applicant is requesting upgrade of his under honorable conditions, general discharge characterization to honorable. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post-service records showed the applicant diagnosed with Polysubstance Dependence. Records were void of evidence of a PTSD diagnosis for the applicant, and he provided no documentation supporting his assertion of being diagnosed with PTSD. In absence of documentation supporting his diagnosis of PTSD, there is insufficient evidence to support his contention that PTSD was a mitigating factor in his misconduct. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigates his misconduct. However, he contends his misconduct was related to PTSD, and per Liberal Consideration, 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 contends his misconduct was related to PTSD. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant is requesting upgrade of his under honorable conditions, general discharge characterization to honorable. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post-service records showed the applicant diagnosed with Polysubstance Dependence. Records were void of evidence of a PTSD diagnosis for the applicant, and he provided no documentation supporting his assertion of being diagnosed with PTSD. In absence of documentation supporting his diagnosis of PTSD, there is insufficient evidence to support his contention that PTSD was a mitigating factor in his misconduct. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, 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 medical review, 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 PTSD, other BH diagnosis, post-service achievements, or letters of reference in support of a clemency determination. 2. The Board noted the applicant was discharged for unsatisfactory performance and was provided an under honorable conditions (General) characterization of service. Additionally, the Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 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 and amendment of the previous Board decision is 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 Docket Number AC87- 09192 on 21 September 1988. 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. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 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. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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) AR20220010801 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1