IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20220000225 APPLICANT REQUESTS: upgrade of his general under honorable conditions character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 11 August 2021. FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 believes he was suffering from post-traumatic stress disorder (PTSD) and later attention deficit hyperactive disorder (ADHD). He was young and made mistakes. He now looks back and realizes many of his issues during his return stateside were related to PTSD and ADHD. Later in his life he began treatment and has a successful marriage and raised two daughters. He has always been ashamed of not having an honorable discharge. 3. On 5 April 1971, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed entry Program (DEP) for a period of 6 years at age 17. 4. On 1 July 1971, he was discharged from the USAR DEP and enlisted in the Regular Army for a period of 4 years at age 17. 5. He completed Basic Combat Training at Fort Dix, he completed Advanced Individual Training at Fort Devens, and he was awarded military occupational specialty (MOS) 05K (Electronic Warfare/Signal Intelligence Non-Morse Interceptor). He attained the grade/pay grade of specialist 4/E-4. 6. His DA Form 20 shows he completed service in Vietnam for 5 months from 28 August 1972 to 26 January 1973; and in Far East Pacific Area-Thailand for 7 months from 29 January 1973 to 27 August 1973. 7. On 1 April 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his place of duty at COB B, 7th Radio Research Field Station, at the prescribed time on or about 0600 hours, 1 April 1973. His punishment consisted of forfeiture of $50.00 per month for 1 month, reduction to private first class (PFC), and 14 days' restriction. The part of his punishment of reduction to PFC was suspended for 60 days and he did not appeal this punishment. 8. On 29 January 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongful possession of marijuana on or about 25 November 1973. His punishment consisted of forfeiture of $50.00 pay for 1 month which was suspended for 30 days. He did not appeal this punishment. 9. On 17 June 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for dereliction of duty in that he destroyed his Government Motor Vehicle Operator's Identification Card on 5 June 1974, a direct result of which disabled his ability from operating a government vehicle he was obligated to perform; and absenting himself from the 370th USASA Operations Area, Warrenton VA from on or about 0730 hours, 8 June 1974 to 0730 hours, 10 June 1974. His punishment consisted of reduction to PFC and forfeiture of $75.00 pay for 1 month. He did not appeal this punishment. 10. On 1 July 1974, his immediate commander notified him of his intention to initiate action against him to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13 for unsuitability. He understood he had the right to present his case before a board of officers, to submit statements in his own behalf, and to be represented by counsel. 11. On 8 July 1974, the applicant indicated he understood the contemplated actions being taken against him to accomplish his separation for unsuitability and elected his rights. He waived consideration of his case by a board of officers, he waived representation by appointed counsel, and he did not submit statements in his own behalf. He understood that he may only receive a discharge under honorable conditions since he was being recommended separation for unsuitability under provisions of paragraph 13-5a(3)b. He further understood he could expect to encounter substantial prejudice in civilian life in the event a general, discharge, under honorable conditions was issued to him. 12. On 10 July 1974, he underwent a mental status evaluation. A MEDDAC- MH Form 10 (Psychiatric Evaluation Certificate), shows the Medical Officer (Major (MAJ) DLU, Medical Corps (MC), Mental Hygiene Consultation Service, Fort Belvoir, evaluated him for separation as requested by his command. The Medical Officer further indicated: (1) After psychiatric evaluation, his diagnosis was determined to by passive- aggressive personality disorder, marked impairment for further military service, line of duty, existed prior to service. The diagnosis came under the category of character, behavior, and personality disorders and disposition was effected through administrative channels. He had no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. (2) His behavior was normal and his level of alertness was fully alert. He was fully alert and fully oriented. His mood was level with clear thinking process. His thought content was normal and his memory was fair. (3) His condition was due to deficiencies in emotional, personality, and characterological development of such a degree to render him more of a liability than an asset for further military service. (4) His impression was no significant mental illness. He was mentally responsible, able to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and participate in Board proceedings. (5) He met the retention standards prescribed in chapter 3, Army Regulation (AR) 40-501 (standards of Medical Fitness) and further rehabilitative efforts were likely to be effective. He cleared him for administrative proceedings which the command deemed appropriate and recommended he be administratively separated from the service. 13. On 15 July 1974, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at 370th USASA Operations Company formation at 0730 hours on 26 June 1974; and for disobedience of a lawful order issued by Sergeant First Class to get a haircut and report back to SFC on 25 June 1974. His punishment consisted of reduction to private 2/E-2 (suspended for 4 months) and forfeiture of $50.00 pay for 1 month. He did not appeal this punishment but he did provide a statement through counsel on the same date. 14. On 15 July 1974, the applicant responded through counsel by memorandum to the NJP action taken against him, stating he: * was told to be at the Belvoir Mental Health Clinic on 26 June 1974 and could not go to formation * did not have money to pay for the haircut and did not think to ask for it from his SFC * got a haircut the next payday on 27 June 1974 15. On 26 July 1974, his commanding officer vacated the suspended portion of the punishment of reduction to PV2/E-2, given to him on 15 July 1974. 16. On 5 August 1974, his commander recommended his elimination for the service under the provisions of Army Regulation 635-200, chapter 13-5b(3) for unsuitability because of deficiencies in emotional, personality, and characterological development. He stated that the applicant had been received four instances of NJP under the provisions of Article 15 of the UCMJ, including a vacation of suspension, for not being at the appointed place of duty, for AWOL, and for not having appropriate interest, violation of written and verbal orders, and for possession of a controlled substance. He further stated the mental status evaluation recommended he be separated due to deficiencies in emotional, personality, and characterological development. Therefore, due to the wide variety of offenses under Article 15 of the UCMJ and the recommendation by the psychologist the separation for unsuitability was recommended. 17. On 16 August 1974, the separation authority approved his discharge and directed issuance of a General Discharge Certificate. 18. On 19 August 1974, he was discharged. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under provisions of AR 635-200, paragraph 13-5b(3), SPD JMJ (Unsuitability), with a characterization of under honorable conditions. He completed 3 years, 4 months, and 16 days of total active service. He was awarded or authorized: * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Vietnam Service Medal with 2 bronze service stars * Meritorious Unit Commendation * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 19. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 20. On 25 February 2022, ARBA requested the applicant provide the Board with medical documents in support of his mental health issues of PTSD and ADHD and gave him 30 days to respond. It further advised him he could withdraw his case if he was unable to obtain the documents and reapply once he obtained them. He did not respond to this request. 21. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was 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. One Board member considered the circumstances in which the applicant served and weighed in favor of the request. However, based on the totality of the misconduct, two Board members determined the evidence presented insufficient to weigh in support of a clemency determination. Based on the preponderance of evidence available for review and in the absence of mitigating factors such as post service accomplishments or letters of reference, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, United States 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) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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 13 established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. d. Paragraph 13-5b(3) provided an individual was subject to separation under the provision of this chapter for unsuitability for apathy (lack of appropriate interest). A General Discharge Certificate was normally directed under this paragraph. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel. Provides 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. 5. Army Regulation 635-200 was revised on 1 December 1976 following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on a personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrades of discharges based on personality disorders. 6. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20220000225 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1