IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220010980 APPLICANT REQUESTS: In effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 293 (Application for the Review of Discharge) . Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 27 July 2022 . DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 5 March 1980 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, he would like an upgrade because he was 17 years old, immature, and diagnosed as being bipolar with high anxiety after separation. He believes his condition, combined with alcohol abuse, made it hard to assimilate to military life. His alcohol abuse led to insubordination. If he had adequate representation, he would not have taken a separation without understanding the consequences of his actions. He wishes someone would have explained things to him better and steered him in the right direction. If so, he would have received the help he needed for his alcohol abuse instead of being kicked out. 3. The applicant's service record shows: a. On 9 August 1979, the applicant enlisted in the Regular Army for a 3-year service obligation at the age of 17 years. Upon completion of training, he was awarded military occupational specialty 64C (Motor Transport Operator). b. On 27 December 1979, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: . assaulting a Soldier by striking him on the face with a dangerous weapon [a stick and his fist], on or about 9 December 1979 . assaulting another Soldier by striking him on the shoulder with a dangerous weapon [a stick], on or about 9 December 1979 . being drunk and disorderly in quarters on or about 19 December 1979 . being drunk and disorderly in another Soldier's home on or about 21 December 1979 . his punishment included forfeiture of $224 (suspended for 6 months), 45 days restriction and 45 days extra duty (with 15 days suspended for 6 months) . on 31 December 1979, the previously suspended portions of his punishment was vacated and ordered duly executed c. On 4 January 1980, the applicant underwent a separation examination. The corresponding medical documents shows he did not list any complaints. d. On 28 January 1980, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with the following offenses: . six specifications of failing to go to his appointed place of duty at the prescribed time, on or about 30 December 1979, 1 January 1980, 2 January 1980, 7 January 1980, 8 January 1980, and 9 January 1980 . three specifications of willfully disobeying lawful commands, on or about 1 January 1980 and 2 January 1980 . one specification of behaving with disrespect towards his superior commissioned officer on or about 2 January 1980 e. On 5 February 1980, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he was afforded the opportunity to submit a statement in his own behalf. f. Subsequently, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, and directed he be issued an UOTHC Discharge Certificate. g. On 5 March 1980, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. His service was characterized as UOTHC, and he was credited with completing 6 months and 27 days of net active service this period. 4. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 5. 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. 6. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his Under Other than Honorable Conditions (UOTHC) discharge. The purpose of this opine is to determine if mental health conditions mitigated his misconduct and/or 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 9 August 1979. . On 27 September 1976, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, for the following offenses: assaulting a Soldier by striking him on the face with a dangerous weapon [a stick and his fist], on or about 9 December 1979, assaulting another Soldier by striking him on the shoulder with a dangerous weapon [a stick], on or about 9 December 1979, being drunk and disorderly in quarters on or about 19 December 1979 and being drunk and disorderly in another Soldier's home on or about 21 December 1979. . On 28 January 1980, court-martial charges included six specifications of failing to go to his appointed place of duty, three specifications of willfully disobeying lawful commands, and one specification of behaving with disrespect towards a superior commissioned officer (all charges between 30 December 1979 and 9 January 1980). . On 5 February 1980 the applicant requested a discharge in lieu of trial by court marital. . Applicant was discharged 5 March 1980 under AR 635-200, 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 293, VA Form 21-4138, his 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 they did not contain any data. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that his misconduct was mitigated by being immature and by alcohol abuse. He also reported that he was diagnosed with high anxiety and bipolar disorder after discharge, though no medical records were provided to support this assertion. It does appear that his alcohol abuse was a major factor in his discharge (insubordination, difficulty assimilating to military life), though this is not considered a mitigating condition. As part of the separation process, the applicant underwent a medical examination on 4 January 1980. No psychological concerns nor complaints were documented, with the applicant denying depression or excessive worry, nervous troubles of any sort or difficulty with sleep. No other medical nor mental health records were provided, nor found in his electronic health record. There is no indication that he’s ever been diagnosed with any other mental health condition or concern. Though, given lack of electronic health records and the culture of mental health care at the time of his service, this is not uncommon. If the applicant had been serving more recently, many of these incidents of misconduct would have led to a referral to the Army Substance Abuse Program for an assessment and potentially treatment. There is no indication in his records that any attempt was made at engaging him treatment. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence to support the applicant had a condition or experience at the time of service that would mitigate his discharge. Though, there is evidence he likely had untreated alcohol use disorder which does appear directly related to his discharge. 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 has a condition that mitigates his discharge. 2. Did the condition exist or experience occur during military service? Yes. The applicant does not state it directly but insinuates that mental health concerns were present during his time in service. He acknowledges, though, that he was not diagnosed with bipolar disorder and anxiety until after his time in service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. There is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition as no medical records from his time in service, nor his time after discharge, were provided. The applicant’s misconduct included some behaviors consistent with the natural history and sequelae of anxiety (avoidance as seen through failure to report, substance abuse/drunk and disorderly) and bipolar disorder (irritability as seen through showing disrespect/insubordination; distractibility as seen through failure to report; also, substance abuse of co-occurs with bipolar disorder). There is a nexus between these symptoms/experiences and the misconduct leading to his discharge. However, there is no nexus between physical violence with a weapon and anxiety or bipolar disorder. This misconduct is not part of the natural history or sequelae of the alleged mental health conditions. Typically, it does not affect one’s ability to distinguish right from wrong and act in accordance with the right, unless psychosis is present with bipolar disorder, and there was no indication of psychotic symptoms during his time in service. And finally, these behaviors are not sufficient to establish a history of a condition during active service. 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: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense 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 applicant's mental health claim and the review and conclusions of the ARBA Behavioral Health Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being only partially mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined 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 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 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. 4. 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. 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; 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. 6. 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, 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. 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//