IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220010850 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge to honorable. Additionally, he requests a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) Benefits and Summary Letter, dated 1 July 2020 * VA Psychologist Letter, dated 22 July 2022 * Father’s Death Certificate, dated 13 July 1972 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (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 he was given a compassionate reassignment to Fort Ord, CA, due to his father being sick. His father died from the illness in July 1972. In addition, he states the Major in charge of his unit was prejudice and discriminated against him. He has severe post-traumatic stress disorder (PTSD) that is service connected and is rated at 100 percent (%) for VA benefits. His character of discharge is not correct given the reason why he took the necessary actions to get home. 3. On his DD Form 149, the applicant notes that PTSD and other mental health are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. On 21 August 1968, the applicant enlisted in the Regular Army for 3 years. Upon completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist). The highest grade he attained was E-4. 5. The applicant served in Korea from 17 March 1969 until 16 April 1970. 6. He was reassigned from Fort Gordon, GA, to Fort Ord on or about 16 September 1970. The relevant documents supporting his contention that he was granted a compassionate reassignment are not available for review. 7. On 27 October 1970, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for going absent without leave from on or about 25 September 1970 to on or about 25 October 1970. His punishment included forfeiture of $50.00 per month for two months, and reduction in grade to E-3 (suspended for two months). 8. The applicant was released from active duty on 20 September 1971, and transferred to the control of the U.S. Army Reserve (USAR). His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with Separation Program Number 201 (expiration term of service). His service was characterized as under honorable conditions (general). He was credited with 3 years of net active service this period, with 31 days of lost time. 9. The applicant was discharged from the USAR on 1 August 1974, under the provisions of Army Regulation 135-178 (Reserve Components – Separation of Enlisted Personnel), paragraph 3-1, for expiration term of service. His service was characterized as under honorable conditions (general). 10. The applicant provides the following (provided in entirety for the Board): a. VA Benefits and Summary Letter, that shows he was granted a service- connected disability ratings for bilateral hearing loss, radiculopathy of the righter lower extremity, PTSD, left and right knee instability, thoracolumbar degenerative arthritis with intervertebral disc syndrome, tinnitus, degenerative left and right knee arthritis. and migraines. b. VA Psychologist Letter, which states that although the applicant’s actions going AWOL were inappropriate, they were justifiable considering the racial, discriminatory, and hostile environment of the Georgia duty station. 11. 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. ? 12. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge to honorable. He contends he had mental health conditions including PTSD that mitigated his misconduct. 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 in the Regular Army on 21 August 1968; 2) He was reassigned from Fort Gordon, GA, to Fort Ord on 16 September 1970; 3) On 27 October 1970, the applicant accepted non-judicial punishment for going AWOL from 25 September 1970 -25 October 1970; 4) The applicant was released from active duty on 20 September 1971 and transferred to the U.S. Army Reserve (USAR) with Separation Program Number 201 (expiration term of service). His service was characterized as under honorable conditions (general); 5) The applicant was discharged from the USAR on 1 August 1974, Chapter 3-1, for expiration term of service. His service was characterized as under honorable conditions (general). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation were also examined. d. The applicant asserts he was experiencing racial discrimination and resultant mental health conditions including PTSD while in active service, which mitigates his misconduct. There was no indication the applicant reported mental health symptoms while on active service. The applicant reported that he was compassionately reassigned to Fort Ord due to his father’s illness. The applicant was reassigned to Fort Ord on 16 September 1970. Shortly after arriving to Fort Ord, the applicant was found to be AWOL. The applicant submitted a letter, dated 22 July 2022, from his VA psychologist from,. In the letter the psychologist stated the applicant went AWOL because of the racism he experienced in. However, the applicant was stationed in when he went AWOL. In addition, the applicant was released from active service due to the expiration of his term of service a year after he went AWOL, and he went on to serve in the USAR for a number of years. A review of JLV provided evidence the applicant has been treated for depression by the VA since 2018, and the applicant has been awarded service-connected disability PTSD (70%) in 2018. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant was experiencing PTSD while on active service, but there is insufficient evidence his reported mental health conditions including PTSD or an experience mitigate his misconduct. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with depression and service- connected PTSD. The applicant contends his mental health conditions were mitigating factors in his misconduct. 2. Did the condition exist or experience occur during military service? Yes, the applicant has been diagnosed with service-connected PTSD. 3. Does the condition experience actually excuse or mitigate the discharge? No. There is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. The applicant did go AWOL, which can be a sequalae to PTSD, but the applicant’s evidence reported he experienced racism while stationed in Georgia. Yet after he was reassigned to Fort Ord, he went AWOL. Also, the applicant did not appear to be discharged for this misconduct. He continued in active military service, and he transferred to the USAR where he served for a few years. However, 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: 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. The Board agreed the applicant did not appear to be discharged for this misconduct, but it had an impact on the type of discharge received. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official finding there is insufficient evidence beyond self-report the applicant was experiencing PTSD while on active service. The applicant provided no post-service achievements or letters of reference in support of a clemency determination. 2. The applicant was discharged for expiration term of service and was provided an under honorable conditions (General) characterization of service. 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010850 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1