IN THE CASE OF:   
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20220011332 
 
 
APPLICANT REQUESTS:   
 
 a.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his social security number (SSN) from xxx-xx-9408 to xxx-xx-7409 and change the type of discharge from Other than honorable to Honorable. 
 
 b.  Personal appearance before the Board 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Personal Statement 

• Brain MRI with Contrast Report, 31 May 202 

• After Visit Summary, 6 June 2022 

• Social Security Card 


 
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 believes the type of discharge he received is unjust. He never received a proper hearing before his discharge. He has initially attempted to address this after his discharge in 1971; however, he was unsuccessful due to the contradictory information he received from his sergeant while on active duty and the VA.  
 
 a.  While serving on active duty, he had to constantly endure harassment from another active-duty member in his unit, he attempted to create a fight which eventually occurred where he picked up a board to strike him; he then ran off. He had to endure this daily, in conjunction with trying to adapt to the demands of the Army which made it very difficult for him. He then went AWOL (absent without leave) for 28-29 days. After 
informing his dad of his situation he gave him money and informed him to report back to his unit and turn himself in, which he did. 
 
 b.  Upon returning, he was placed in the stockade for 35 days where he was injured while chopping wood. After leaving the stockade he was informed by his sergeant that he could return to his artillery training from the beginning, or he could be discharged and request a hearing to upgrade the discharge after his separation. He chose to be discharged. Upon his separation from the Army, he filed a request for a hearing to upgrade his discharge with the VA. The VA provided him with a hearing date and a contact number of an Attorney to represent him. The attorney never answered 
phone calls. After informing the VA of this, the VA contradicted themselves saying the VA could not represent him; however, later stating they could. He ended up missing the hearing. He followed everything he was told to do and was at a loss in how to pursue the upgrade of his discharge. He then gave up.  
 
 c.  In conjunction with the harassment he endured, he was dealing with mental health issues as well as having to preform my job. After being handed grenades which were duds, he was handed a live grenade which explode very close to him. While in the tank he endured intense shaking and loud sounds when artillery was fired. He got sore knees from being on his knees for long period of time, his feet bleeding from the arches provided by medical personnel and ordered him to wear them while marching long distances where he could not walk anymore. He was given time off to recover, these are just a few issues he dealt with. He still receives treatment from civilian doctors for his disabilities which occurred while he was on active duty. He has also been admitted into mental facilities for treatment. Many decades later he has now recently filed documents with the VA however, to date he is still awaiting their response. He is now fully aware of the impact his discharge has had on his life. [The applicant marked on his application: PTSD (post-traumatic stress disorder), Other Mental Health, and Sexual Assault/Harassment]  
 
3.  Review of the applicant’s service records shows: 
 
 a.  He was inducted into the Army of the United States on 19 May 1971. His DD Form 47 (Record of Induction) listed his SSN as xxx-xx-9408. Following his induction, he completed a DD Form 398 (Statement of Personal History) but did not list an SSN. 
 
 b.  His DA Form 20 (Enlisted Qualification Record), which was created upon his entry on active duty also listed his SSN ending with 9408. Additionally, several personnel, finance, and other documents in his service record listed his SSN ending with 9408, including Fingerprint Card, National Agency Check Request, Miscellaneous orders, and Application for ID card  
 c.  Following completion of basic training at Fort Leonard Wood, MO, he was reassigned to Fort Sill, OK for completion of military occupational specialty 13B, Field Artilleryman. 
 
 d.  On 7 September 1971, he was reported in an AWOL status and on 5 October 1971, he was dropped from the rolls as a deserter. He returned to military control on or about 12 October 1971. He was placed in pre-trial confinement. 
 
 e.  Upon return from AWOL, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 7 September to 12 October 1971.  
 
 f.  On 19 October 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he indicated: 
 
• he acknowledged he understood the elements of the offense(s) charged and he was guilty of the charge(s) against him or of (a) lesser included offense(s) which authorizes the imposition of a bad conduct or dishonorable discharge 

• he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person 

• he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service 

• he understood that if his discharge request were approved, he could be deprived of many or all Army benefits and he could be ineligible for many, or all benefits administered by the Veterans Administration 

• he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws 

• he declined making a statement on his own behalf 


 
 g.  The chain of command recommended approval with the issuance of an under other than honorable conditions discharge.  They believed his pattern of behavior indicates that retention is neither practical nor desirable.   
 
 h.  On 22 November 1971, the separation authority approved the applicant's request for discharge, directed his reduction in grade to private (PV1)/E-1 (if applicable), as well as the issuance of an Under Other Than Honorable Conditions Discharge Certificate.   
 
 i.  On 19 November 1971, he was discharged accordingly. His DD Form 214 shows he was discharged in accordance with chapter 10 (in lieu of trial by court-martial) of AR 635-200 with an under other than honorable conditions discharge. He completed 3 months and 22 days of active service with 77 days of lost time. His DD Form 214 listed his SSN as xxx-xx-9408, consistent with all other documents in his service record.  
 
 j.  On 10 March 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge after that board determined he was equitably and properly discharged.  
 
5.  The applicant provides a copy of a social security card that ends with 7408.  
 
6.  By regulation, a member who has committed an offense 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. 
 
7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
8.  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 asserts PTSD, other mental health, and a mitigating experience, as factors in his misconduct and 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 was inducted into the Army of the United States on 19 May 1971. 

• On 12 October 1971, court-martial charges were preferred against him for going AWOL from on or about 7 September 1971 through 12 October 1971.  

• On 19 October 1971, the applicant voluntarily requested discharge under AR 635-200, Chapter 10, in lieu of trial by court-martial. The request was approved.  

• The applicant was discharged on 19 November 1971 under AR 635-200, Chapter 10, in lieu of trial by court-martial with an UOTHC characterization of service. 

• On 10 March 1981, the ADRB denied his request for an upgrade of his discharge after that board determined he was equitably and properly discharged.   


 
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 149, ABCMR Record of Proceedings (ROP), personal statement, brain MRI, after visit summary, social security card, 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), though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  On his application, the applicant checked PTSD, other mental health and MST/harassment as mitigating factors in his discharge. In his self-authored statement it is evident he did not mean sexual assault or sexual harassment, but instead non-sexual harassment. The applicant asserts he endured daily harassment by someone in his unit and was nearly assaulted (hit with a board) but ran off. He also reported experiencing a grenade go off near him. He asserts PTSD secondary to his experiences while in the service and overall stated he had been dealing with mental health issues while trying to perform his job. No medical or mental health records were available from his time in service in his electronic health record (EHR), which is to be expected given his years of service. Hard copies of his treatment records were provided for review. During his initial medical evaluation (21 January 1971) prior to induction, the applicant reported issues with sleeping but denied any depression, nervousness, loss of memory or other mental health related concerns. Consistent with his recent self -authored statement, he reported issues related to his feet/arches, which he began reporting even prior to any exercise starting. There is no indication he was ever treated for mental health concerns while in the service. He participated in a medical exam as part of his separation processes (20 October 1971). Everything, to include psychiatric and neurological concerns were reported as normal by the assessing provider, though the applicant did self-report nervousness as well as several medical concerns (most of which he appeared to present with at his initial screening as well).  
    e.  The applicant wrote a letter at the time of the separation proceedings noting that he has trouble adapting, and that he experiences mental strains, and that this type of change tends to break him apart. He noted his strain and confusion increasing “making it impossible to continue in the service.” He noted he “blocked out the Army” when he left (went AWOL) but when he was calmed down, he “came to [his] senses” and returned back to base. He also noted if he stayed in the Army, he believed he would “breakdown completely.” At the time of this letter, he did not note any issues or concerns with harassment or mistreatment while in the service. A request for information from CID did not produce any records or data about the applicant’s asserted harassment.  
    f.  Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available that were able to provide basic information, such as diagnoses. The applicant was diagnosed with memory loss in 2023, insomnia in 2019, mood disorder in 2018, and generalized anxiety disorder in 2014. In his self-authored statement, he implies he’s had mental health treatment since his discharge, however he did not provide any documentation or support of the diagnoses he is asserting.  
    g.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, outside of self-report, to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends PTSD, other mental health, and harassment are related to his request for upgrade, 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 a mitigating condition and experience.  
 
    (2)  Did the condition exist or experience occur during military service? Yes, the applicant asserts a mitigating condition and experience occurred during his time in service.  
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No, however consider clemency. The applicant asserted PTSD, other mental health and harassment mitigated his discharge. There is insufficient evidence that the applicant had a mitigating condition during his time in service. The applicant holds no service connection nor mental health diagnoses from the VA. The applicant has since been diagnosed with several mental health concerns from community providers (GAD, mood disorder, insomnia) however this is documented 40 or more years from his time of discharge and full records were not available to understand their etiology. The applicant also asserts harassment; however, harassment alone is not a mitigating experience (the applicant did not appear to be asserting sexual assault or sexual harassment). It is evident that the applicant did not want to be in the service, and that he did not believe he had the personality and mental strength to continue serving, as he said as much in his self-authored statement from 1971. Hence, while there is insufficient evidence that the applicant had a mitigating condition or experience during his time in service, there is 
still evidence present that makes it clear he was not a good fit for the Army. He was honest during his medical evaluation at time of conscription of all of this concerns, he was regularly seeking medical care immediately upon entering the service, and he was admitting to mental health “strain” and “breakdowns” while being separated out. Pair this with reported harassment and threat of physical assault, and an accidental live grenade explosion, and it appears he perceived his military service as a traumatic experience. Going AWOL is an avoidance behavior, consistent with numerous mental health concerns (to include PTSD, anxiety and depression). Again, while he may not evidence a supported mitigating condition or experience, his record indicates he was likely not appropriate for military service. He had only been in just over three months and evidenced failure to adapt. Now, this advisor would recommend the board consider clemency. 
 
BOARD DISCUSSION: 
 
1.  The Board determined 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. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation.  
 
 a.  The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board was persuaded by and 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 on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
 
 b.  The evidence of record shows the applicant used the contested SSN during his entire period of service. There is no evidence the applicant used the requested SSN. 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, unless there is sufficient evidence that shows a material error or injustice.  
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/12/2023

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.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers at the time of retirement, discharge, or release from active duty service or control of the Active Army. It 
established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The specific instructions for item 3 stated to verify the accuracy with the SSN of record.  
 
3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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. 
 
 a.  Paragraph 3-7a states that 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.  Paragraph 3-7b states that 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.   
 
4.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD 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. 
 
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; TBI; sexual assault; sexual harassment.  Boards were directed 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 that misconduct which led to the discharge. 
 
6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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.  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.  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. 
 
7.  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.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.   
 
 a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  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. 
 
8.  Section 1556 of Title 10, United States 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//