IN THE CASE OF: BOARD DATE: 19 May 2023 DOCKET NUMBER: AR20220010951 APPLICANT REQUESTS: . an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge . correction of all his military records to show his date of birth (DOB) as . Specifically, his DD Form 214 (Report of Separation from Actie Duty) for the period ending 31 July 1976, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 October 1983 . an appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Certificate of Live Birth, State Board of Health, certified on . DD Form 214, for the period ending 31 July 1976 . DD Form 4, page 1, 15 June 1982 . DD Form 794A (UOTHC Discharge Certificate), dated 27 October 1983 . DD Form 214, for the period ending 27 October 1983 . Rating Decision documents, Department of Veterans Affairs (VA), six pages, dated 24 February 2015 . VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Claimant's Representative), dated 17 August 2022 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, in effect: a. His DOB is . His DD Forms 214, and perhaps all other military records read . b. He served as a Hercules Fire Control Crew member, in a very high stress environment during the Cold War, where he dealt with real world threats. Due to the highly classified, sensitive nature of the information, he was not able to discuss his feelings of concern and fear with anyone. He self-medicated with alcohol and hashish. He became a functioning alcoholic who was able to maintain his job performance. He was not aware he developed post-traumatic stress disorder (PTSD). It has impacted his adult life. He lost his job and is divorced. He is currently being treated by the VA, but he is not receiving disability due to his UOTHC discharge. 3. The applicant's initial enlistment documents are not included in the available record. His DD Form 214 shows he entered active duty on 7 August 1974. He was released from active duty on 31 July 1976, with an honorable characterization of service. He was credited with 1 year, 11 months, and 24 days of net active service. Item 4 (Date of Birth) shows his DOB as . 4. The applicant enlisted in the Regular Army on 15 August 1978, for a 4-year period. His DD Form 4 (Enlistment or Reenlistment Agreement -Armed Forces of the United States), item 7 (Date of Birth) shows his DOB as . He reenlisted for a 6-year period on 15 June 1982. The relevant DD Form 4 also shows his DOB as . 5. Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet), dated 12 July 1983, shows he was charged with the wrongful possession of some amount of a Scheduled I controlled substance, to wit: Heroin, on or about 17 June 1983. His DOB is shown as . 6. He consulted with legal counsel on or about 16 September 1983. a. He 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 UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial, under the provision of Army Regulation 635-200 (Personnel Separations -Enlisted Personnel), Chapter 10. In his request for discharge, he acknowledged making the request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. He did not provide a statement. 7. The applicant's immediate and intermediate commanders recommended approval of the request for discharge in lieu of trial by court-martial, and further recommended the issuance of a UOTHC discharge. 8. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 29 September 1983. He further directed the applicant be reduced to the lowest enlisted grade and be issued an UOTHC Discharge Certificate. 9. A Standard Form (SF) 93 (Report of Medical History), dated 12 October 1983, and the corresponding SF 88 (Report of Medical Examination) show the applicant reported being in good health, and he was medically cleared by the examining physician. The SF 88 shows his DOB as . 10.A DA Form 2496 (Disposition Form), dated 27 October 1983, shows the applicant underwent a required mental status evaluation prior to separation. 11.He was discharged on 27 October 1983. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service -in lieu of court-martial. His character of service was UOTHC. He was credited with 5 years,2 months, and 7 days of net active service this period. Item 5 (Date of Birth) shows his DOB as . 12.The applicant provides: . a Certificate of Live Birth from the State Board of Health which shows his DOB as . copies of his DD Forms 214, his DD Form 4, dated 15 June 1982 and his DD Form 794A . a decision letter from the VA, and the corresponding Rating Decision, dated 20 February 2015, which shows the applicant was granted service connection for PTSD for treatment purpose only . VA Form 21-22, dated 17 August 2022, wherein the applicant authorizes a VSO as his representative 13.The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 14. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 15. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his Under Other than Honorable Conditions (UOTHC) discharge to an Honorable discharge. The applicant contends that undiagnosed PTSD mitigated 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 7 August 1974 and was Honorably discharged 31 July 1976. . Applicant enlisted again in the RA on 15 August 1978. He reenlisted on 15 June 1982. . 12 July 1983, court martial charges were preferred against the applicant for wrongful possession of a schedule 1 controlled substance (heroin). . On 16 September 1983, the applicant requested a discharge in lieu of trial by court, under the provision of AR 635-200, Chapter 10. . Applicant was discharged 27 October 1983 under AR 624-200, Chapter 10 with an UOTHC. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), VA Rating Decision documents, DD 214s, service records, and separation documentation. The VA electronic medical record and DoD health records were reviewed. No additional hardcopy military or civilian treatment records were provided for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that he was serving in a high stress job, and within a highly classified position that did not allow him to discuss his feelings or concerns. He attests that he was not aware that he had developed PTSD and was using substances to self-medicate. He contends that his undiagnosed mental health conditions mitigate his discharge, as he was caught with a schedule 1 substance (heroin). During his discharge proceedings he underwent a physical exam, at which time both he and his doctor denied any psychological conditions. In addition, there is documentation stating he went through a mental status exam, however the specific details of that were not available for review. The applicant also contends that he has since been diagnosed with PTSD and has been seen at the VA. His electronic health records through the VA do not support that he has been seen or treated for PTSD. He has been service connected for scars, but his current EHR does not list PTSD as a service connected condition. However, the applicant did provide a copy of his benefits letter where it is outlined, as of 2015, that he is service connected for PTSD for treatment only. It is unclear at this time if this has been overturned OR if treatment only service connection does not show up in JLV the same way compensable service connection does. The applicant did not provide any additional medical records for review. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal and conflicting evidence to support the applicant had a condition or experience at the time of service that would mitigate his discharge. There is also some evidence he may have had untreated substance use disorder at the time of service. 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 attests to having PTSD. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends that he was experiencing undiagnosed PTSD and substance use issues during his time in service. He has since been service connected for treatment purposes only of PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. There is no medical documentation from his time in service to support mental health conditions or concerns, however this is not uncommon given the lack of electronic health records at that time. However, the available physical examination has both the applicant and his doctor denying any psychological concerns at the time of discharge. The applicant provided a letter indicating he has been service connected for treatment only of PTSD, however his current medical records do not reflect this service connection and there is no record of a mental health diagnosis or treatment from the VA in his EHR. Of note, substance use is often a self-medicating behavior, used to avoid and mask symptoms, and this can be associated with the natural history and sequelae of PTSD. But his substance use alone is not sufficient to establish 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 to warrant the board’s consideration. With caution, this advisor recommends mitigation. BOARD DISCUSSION: 1. 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. One possible outcome was to approve the applicant’s request based upon guidance for consideration of discharge upgrade requests. The Board noted during his discharge proceedings he underwent a physical exam, at which time both he and his doctor denied any psychological conditions and the applicant is not service connected for PTSD nor any other mental health diagnosis. The Board determined that they did not agree with the medical advisory opinion in that the applicant’s basis for separation was only partially mitigated. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The applicant is advised that a copy of this decisional document will be filed in his official military personnel file. This should serve to clarify any questions or confusion about the difference in the DOB in his military records and DOB on his Certificate of Live Birth. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. 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. 4. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant. Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 27 October 1983 is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): . SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE . CONTINUOUS HONORABLE SERVICE FROM 19780821 UNTIL 19820614 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 15-185 (Army Board for Correction of Military Records), paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. a. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate. Chapter 2 contains guidance on the preparation of the DD Form 214, Item 5 (Date of Birth), stated to verify this information from the record. b. Additionally, the regulatory guidance in effect at the time, did not provide for an additional entry for continuous honorable active service when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. However, an interim change, published on 2 October 1989 does provide for such an entry. 4. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribe the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. These regulations establish standardized policy for the preparation of the separation document. In pertinent part, they state that the separation document is a synopsis of the Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 5. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 6. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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. 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. 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. 8. Section 1556 of Title 10, U.S. 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//