IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20220011593 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his characterization of service from under other than honorable conditions to general, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), 20 September 2022 * DD Form 149 (Application for Correction of Military Record), 20 September 2022 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 AR20150015705 on 8 December 2016. 2. The applicant states in the beginning of his military career he was a good Soldier. He was promoted to specialist three. He had untreated alcoholism, which prevented him from being a complete Soldier. He was 19 years old. He was not bad, he needed help which he received after his discharge. While in service he enjoyed being a Radio Teletype Operator. He also had a heart murmur in 1968. 3. On 30 June 1967, the applicant enlisted in the Regular Army. 4. He received/accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses (on/for): a. 22 September 1967 - for absenting himself from his unit without authority from 18 September 1967 through 19 September 1967. b. 26 January 1968 - for absenting himself from his unit without authority from 2 January 1968 through 25 January 1968. c. 5 July 1968 - for absenting himself from his unit without authority from 3 March 1968 through 27 June 1968. 5. Special Court-Martial Order Number 1902, issued by Headquarters, Special Troops, shows a Special Court-Martial convened on 31 October 1968. a. The applicant was arraigned, tried, and convicted of the charge Article 86, Specification 1: in that the applicant did, on or about 22 August 1968, did on or about 22 August 1968, without proper authority, absent himself from his organization to wit: United States Army Overseas Replacement Station, Oakland, CA, and did remain so absent until on or about 4 October 1968. b. The court sentenced him to reduction to grade of private first class, and forfeiture of $65.00 pay per month for six months. c. The sentence was adjudged on 31 October 1968. d. On 5 November 1968, the convening authority approved only so much of the sentence, but the execution thereof is suspended for three months, at which time unless the suspension is sooner vacated, the sentence will be remitted without further action. 6. On 25 February 1969, the applicant received a psychiatric evaluation with the following results: a. Diagnosis: Passive aggressive personality disorder, severe. b. Comment: the condition does not require hospitalization, is not disabling, and presents no disqualifying mental or physical defect sufficient to warrant discharge under the provisions (UP) of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation Change). This individual was and is mentally responsible, both to distinguish right from wrong and adhere to the right and has the mental capacity to understand and participate in board proceedings. c. Findings: This condition represents a character and behavior disorder described UP of AR 40-401 (Medical Service - Armed Forces Medical Diagnosis Nomenclature and Statistical Classification). This disorder is not medically disqualifying but should be considered in his further training or administrative disposition by the unit commander. d. Other: The 18-year-old [applicant] was interviewed. He has been in the military since January 1967, and by his statement, has eight months of good time. he has been AWOL on seven occasions and has received several Article 15’s and a court martial is pending. It is the opinion of the examiner that the applicant will never soldier, and it is recommended that he be separated UP of AR 635-212. He was cleared for any administrative decision deemed appropriate by command. 7. He appeared before a special court-martial hearing in April 1969. He was charged with being AWOL from 12 November 1968 through 3 December 1968 and again, from 16 December 1968 through 16 January 1969. The defense motion for dismissal of the specifications and charges because of lack of a speedy trial was sustained. 8. The applicant’s complete discharge packet is not available for review, but his records contain – a. Special Orders Number 161, issued by Headquarters, U.S. Army Training Center and Fort Leonard Wood, MO on 10 June 1969, shows the applicant was discharged with an under other than honorable conditions discharge, DD Form 258A, due to the result of elimination board, effective 11 June 1969. b. A memorandum signed by the Commanding General, U.S. Army Training Center Engineer and Fort Leonard Wood, dated 3 June 1969, approving the request for the applicant's elimination from the Army under the provisions of AR 635-212. The recommendation and the request for waiver of counseling and rehabilitation requirements were approved. The Commanding General directed his discharge for unfitness under the provisions of AR 635-212 and issuance of an undesirable discharge. 9. On 11 June 1969, the applicant was accordingly discharge. His DD Form 214 shows he was discharged with an undesirable discharge under the provisions of AR 635-212 and assigned a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities). His service was characterized as under conditions other than honorable. His DD Form 214 shows: * He completed 1 year, and 3 months of net active service this period. * He was awarded or authorized the National Defense Service Medal, and the Marksmanship Marksman Qualification Badge with Rifle Bar. * He had lost time during this period under 10 U.S.C. 972: 18-28 September 1967; 2-25 January 1968, 3 March-26 June 1968, 22 August-3 October 1968, 12 November 1968-15 January 1969, and 21-27 April 1969. * He received SPN code "28B" and a reentry code of "RE-3 and RE-3B." 10. On 8 December 2016, in ABCMR Docket Number AR, the Board denied his request for an upgrade of his discharge. The Board stated: a. Although his complete discharge packet is not available for review, the final action of the commanding general shows he was recommended for elimination from the Army based on unfitness. Rehabilitation requirements were waived and his discharged was approved. b. There is no evidence he was not properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were not met, or his rights were not fully protected through the separation process. His discharge accurately reflects his overall record of service. 11. There is no evidence of record showing he had a permanent physical profile, diagnosis of a disabling condition that rendered him unable to perform the duties required of his military occupational specialty or grade, or a medical examination that warranted his entry into the Physical Disability Evaluation System (PDES). 12. By regulation (AR 635-212), an individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 13. 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. 14. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting a change an upgrade of his 11 June 1969 under conditions other than honorable discharge. He states: “I was a good Soldier in my beginning of service induction ... I received a heart murmur in 1968.” And “I was not undesirable, but sick. I was treated for alcoholism.” c. The Record of Proceedings and prior denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 30 June 1967 and received an under conditions other than honorable discharge on 11 June 1969 under the provisions provided in AR 635-212, Discharge – Unfitness and Unsuitability (8 November 1966). The separation program number 28B denotes the reason for separation as “Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.” d. This request was previously denied in full on 8 December 2016 (AR20150015705). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for full details on that case. e. No new documentation was submitted with the case. From the previous ROP: He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions for the following offenses: • 22 September 1967 - for absenting himself from his unit without authority from 18 September 1967 through 19 September 1967 • 26 January 1968 - for absenting himself from his unit without authority from 2 January 1968 through 25 January 1968 • 5 July 1968 - for absenting himself from his unit without authority from 3 March 1968 through 27 June 1968 A Report of Psychiatric Evaluation, dated 25 February 1969, shows he was diagnosed with severe passive-aggressive personality disorder ... The Army Review Boards Agency psychiatrist provided an advisory opinion on 26 October 2016. She stated there are no medical records available documenting the applicant's claims regarding an accident that resulted in his hospitalization and subsequent mental incapacity to make appropriate decisions. The Report of Psychiatric Evaluation in his records shows he did not have a disqualifying mental or physical defect sufficient to warrant his medical discharge. Based on the available information, the applicant did not have an unfitting medical condition while serving in the Army that warranted his disposition through military medical channels. f. Review of JLV shows he had no diagnoses or clinical encounters. g. It is the opinion of the ARBA medical advisor that a discharge remains unwarranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO (2) Did the condition exist or experience occur during military service? N/A (2) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. 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. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of mitigating factors to overcome the misconduct and the applicant provided no new supporting documentation for consideration of the request. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150015705 on 8 December 2016. 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. Army Regulation 635-212 (Personnel Separations) establishes policy procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. Action will be taken to separate an individual for unfitness when it is clearly established that - a. Despite attempts to rehabilitate or develop him as a satisfactory soldier further effort is unlikely to succeed; or rehabilitation is impracticable (as in cases of confirmed drug addiction or he is not amenable to rehabilitation measures (as indicated by the medical and or personal history record); or an unfitting medical condition (AR 40-501) is not the direct or substantial contributing cause of his unfitness (para 9b). b. An individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. c. Applicability, an in individual is subject to separation under the provision of this regulation when one or more of the following conditions exist: Unfitness – (1) Frequent incidents of a discreditable nature with civil or military authorities. (2) Sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, and other indecent acts or offenses. (3) Drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana. (4) An established pattern for shirking. (5) An established pattern showing dishonorable failure to pay just debts. (6) An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents. 2. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of Iiis/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board, receive a permanent medical profile, P3 or P4, and are referred by a Military Occupational Specialty (MOS) Medical Retention Board, are command-referred for a fitness-for-duty medical examination, are referred by the Commander, U.S. Army Human Resources Command. c. The PDES assessment process involves two distinct stages: the medical evaluation board and the physical evaluation board. The purpose of the medical evaluation board is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service, A physical evaluation board is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his/her office., grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635- 40. 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; 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. 5. 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. 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. 6. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011593 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1