IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220001933 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. Additionally, he requests an appearance via video/telephone before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with self-authored statement (five pages) * Department of Veterans Affairs (VA) Statement in Support of Claim * Congressional Letter * Medical Documents/Records 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 AR20090004624 on 9 June 2009. 2. By letter to the Board, dated 22 January 2008, the applicant states: a. His career as a proud and young Soldier (1980-1985) suddenly ended against his will. He reenlisted in the fall of 1982 and had just been promoted to specialist/E-4. He was in a live fire exercise demonstration and the sound of the 50-caliber machine gun was loud and he asked them to stop firing. He would change the barrels when they got hot. He put his earplugs in his ears but could not hear the commands form his Tank Commander (TC), so he took them out and there was blood on his fingertips. He was begging the TC to stop firing. He had to put the ear plugs back out so he could hear the commands. He was warned of a Field Grade Article 15. The TC ordered him to change the 50-caliber barrel. He did it but he was in tears from the pain and to his regret the 50- caliber began firing again. He thinks he had a head concussion. b. He out processed with limitations on his left knee and his ears were still sore. He reenlisted for tow dragon repair. His ears became infected, and the dispensary gave him ear drops and he thinks an antibiotic. He went deaf and couldn’t hear or talk. He kept doing his duties and still had passing grades in school, not being able to hear or talk, and in intense pain. He kept going back to the dispensary and was given different medications. Stuff was coming out of his ears that smelled like a dead fish. c. He was sent to a hospital for treatment for his ear infection. By this time, he was in extraordinary pain and returned to duty. Finally, they flew him to Walter Reed Army Hospital in Washington, DC. His first day there they treated his ear infection and whatever they did it helped him. They said he would never be able to hear the same again. He had to go through lip reading school, all kinds of hearing tests, hearing aids and given a permanent profile. He went back to Redstone Arsenal, AL, he was weeks away from completing his training and was told he no longer qualified for the military occupational specialty (MOS) he reenlisted for, and that he had to return to his primary MOS 11B (Light Weapons Infantryman). d. He was sent to Fort Irwin, CA, back to the infantry, with a permanent profile and told that he would be going before a Medical Review Board for a medical discharge. Meanwhile, he couldn’t go to the field. He had to wear earmuffs in the motor pool. He had to run troops to and from the field. He had to do kitchen patrol duty in the field. He in and out-processed Soldiers, retrieved personnel in his own car at his own expense, and do barracks maintenance all day. It was like he wasn’t in the service, he had not occupation, he was never trained to do what he was doing, he was a good troop, hard core, now confused and didn’t even have a desire to take a medical discharge. e. Upon all of this, he then got orders to go to Korea for one year and he had to reenlist another time before he could go for that. He was totally in distress and confused. He has lost his hearing and his speech six times in his life and totally deaf for up to four months each time since his tour of duty in Germany. He still struggles to hold a job. He wanted a medical discharge. He didn’t want to be called a wimp. He feared being discharged medically and having this hang over his head in the years to come. This is what led him in the direction he chose without anybody’s help. The fact is, he thought his head was still rattling from the 50-caliber machine gun and his ears are still ringing and just about deaf. 3. On the applicant's DD Form 149, he notes other mental health is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 15 January 1980 and reenlisted on 17 August 1982, for a period of 3 years. He held MOS 11B. 5. The applicant served in Germany from 18 June 1981 to 7 April 1983. 6. The applicant's Personnel Qualification Record shows he was reported absent without leave (AWOL) from 2 November to 14 November 1984 and from 17 November to 18 January 1985. He was apprehended by civilian authorities and returned to military control on 19 January 1985. 7. On 28 January 1985, the applicant acknowledged that he had been counselled on the requirements for completion of a medical examination prior to separation. He made the election that he did not desire to undergo a medical examination. 8. Court martial charges were preferred against the applicant on 29 January 1985. His DD Form 458 (Charge Sheet) shows he was charged with two specifications of being AWOL from on or about 2 November 1984 until 15 November 1984 and 17 November 1984 until 19 January 1985. 9. After consulting with legal counsel on 31 January 1985, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. a. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a punitive discharge. He had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ) and the maximum permissible punishment if he was found guilty. He acknowledged that he could be discharged under conditions of other than honorable and furnished another than honorable discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many, or all benefits administered by the VA. b. He waived his rights and elected not to submit a statement in his own behalf. 10. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial. The separation authority approved the recommended action on 19 February 1985 and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 11. Accordingly, the applicant was discharged on 19 March 1985, in pay grade E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court martial. He completed 4 years, 11 months, and 20 days of active service. His service was characterized as UOTHC. He was awarded or authorized the: * Army Service Ribbon * Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Overseas Service Ribbon * Army Good Conduct Medal * Humanitarian Service Medal 12. The Army Discharge Review Board denied the applicant’s petition to upgrade his discharge on 28 March 1986, and determined he was properly and equitably discharged. 13. The ABCMR denied his request for upgrade on 9 June 2009. The evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case were insufficient as a basis for correction of the records of the individual concerned. The Board acknowledged the applicant’s desire to have he under other than honorable conditions discharge upgraded so that he can qualify for medical and/or other benefits administered by the Veterans Administration and other Federal and State social service organizations; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies. 14. The applicant provides a VA Form 21-4138 (Statement in Support of Claim) and medical documents/records. He was diagnosed on 10 June 2021 with major depressive disorder, single episode, unspecified, anxiety disorder, unspecified and unspecified hearing loss, unspecified ear. 15. By regulation, the ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 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. 16. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. 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. b. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 17. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or in the Health Artifacts Image Management Solutions (HAIMS) due to the age of the case. The applicant requests a discharge upgrade. This is a request for a reconsideration of a March 1995 ADRB and June 2009 ABCMR decision. He has a 4 fold contention: First, he stated that his hearing was damaged during a live fire training exercise during which he experienced ear pain and bleeding. The prolonged recovery including complications with recurrent infections and hearing loss led to depression which influenced his decision to go AWOL. He recalled experiencing depression and confusion concerning his injury and loss of opportunity to pursue the 27E10 Tow/Dragon Repair MOS and having to return to his primary MOS Infantryman. Second, he contends that he developed depression in the Fall of 1981 when he was beaten by a dozen military police off post while in Germany. And later while in custody, he was physically assaulted by an MSG (accompanied by 3 military police) when he lifted him up off the floor by grasping his throat. Third, he suspects that he sustained a concussion (his “head is still rattling from the 50 cal machine gun”) that influenced his decision to go AWOL. Fourth, he provided the following list of in-service injuries, but it was not clear how he related these to his decision to go AWOL: A bilateral hand condition he believes was due to handcuffs (diagnosed with carpal tunnel after service), an injury to his mid to lower back, right foot problems, broken nose, left knee condition, left hand condition due to a human bite on the left thumb, and a broken left ankle. He did state that a medical board was arranged for November 22nd or 23rd for his hearing condition but he did not go. He did not want a medical discharge and he went AWOL instead to seek help from his stepfather. a. Medical records while in service (1) 27Jul1983 Emergency Care and Treatment document left ear pain since the day prior in the setting of recent mild cold symptoms. The left eardrum was dull and poorly mobile but not perforated. The left ear canal was slightly swollen. The diagnosis was Left Otitis Media and Early Left Otitis Externa. He was treated with oral antibiotics and topical medication. During the follow up visit a week later, the applicant reported left ear plugging for 9 days (03Aug1983 Emergency Care and Treatment). The exam showed the canal was occluded with wax. The ear canal lavage revealed normal eardrum. The following month, the applicant was admitted (from 12Sep1983 to 20Sep1983) for Moderate Severe Low Frequency Neurosensory Hearing Loss, Bilateral; and Chronic Otitis Externa- Resolved. He was given a permanent H3 physical profile on 20Sep1983 with Code J restrictions: No assignment involving exposure to loud noises or firing of weapons. In addition, there were certain duties noted that the applicant could not perform that were specific for his Infantryman MOS. (2) 20Dec1983 Outpatient Clinic. The applicant had a Code J profile for moderate severe low frequency sensorineural hearing loss was presenting for a discharge evaluation. An audiogram the following day showed moderate severe hearing loss right greater than left (21Dec1983 Audiology Consult). The 20Dec1983 Audiology Clinic note documented that inconsistent responses during the 17Jan1984 audiogram suggested a functional component to the hearing loss, especially the on the right side. (3) 17Jan1984 Otolaryngology Head and Neck Surgery NRMC,. The note documented that the applicant wore a right ear hearing aid. There was no tinnitus, ear pain, drainage or pressure. He did endorse the right ear feeling “plugged” all the time. The exam showed a clear eardrum and canal. Although there were inconsistent responses on the audiogram, but audiologist did affirm Mild Low Frequency Hearing Loss was present, right greater than left. Results appeared to reflect that he had good high frequency hearing. The applicant complained that he couldn’t hear unless he was in a quiet environment. The value of the hearing aid was questioned since the applicant divulged that he did not use it in the work environment at all. The audiologist recommended a Board because of the impact of the hearing loss on his job in the Army. (4) 05Mar1984 ENT Consult. He was seen for an 8 month history hearing loss. He had been evaluated numerous times including for a hearing aid. His audiogram revealed inconsistent results. A non organic component was suspected. His symptoms included plugging sensation in the right canal. The exam was pertinent for a slightly opaque right eardrum and decreased mobility. His diagnosis was Probable Neurosensory Low Frequency Hearing Loss Right Ear. The repeat audiogram showed upsloping neurosensory hearing loss, bilateral. He was given an H3 profile which was not MEB qualifying. It was recommended that he should be reclassified by his unit. b. Medical records after discharge (1) 01Oct2007 Audiology C&P Exam. The applicant reported right ear hearing loss and tinnitus due to 50 caliber machine guns, APCs, and live-fire exercises. He also reported occupational noise exposure as a truckdriver. Symptoms included decreased bilateral hearing right greater than left, and ringing, roaring, chirping tinnitus in the right ear. The tinnitus began in 1983. He reportedly had right tympanoplasty (ear drum repair). Testing showed Speech Recognition Score: CNC word list 76% Right Ear and 90% Left Ear. Diagnoses were Right Ear Mixed Hearing Loss; and Left Ear Sensorineural Hearing Loss. The examiner recommended that the exam not be used for rating because of inconsistencies in the responses. It was commented that similar inconsistencies were obtained during military audio exams. (2) 28Nov2018 Life Purpose Behavioral Health he had been going to the Worthington Center for the past 4 years for depression, anger and anxiety, but his insurance would no longer pay. Under ‘Developmental Milestones”, the applicant divulged that he always had a hard time with hearing but being in the military had made it worse. He used to dive a truck until 2013 when he began receiving disability. He endorsed a history of suicide ideation before he started taking medication. He had not had these thoughts in 12 years. He endorsed having depression, anxiety and anger. He also endorsed experiencing trauma while in the military: He witnessed fighting; and he was involved in a lot of fights. He reported the following symptoms: Psychosis, sleep problems, and isolation (due to adjusting to changes in his physical condition—disability). There were no significant findings in the mental status exam. The diagnosis was Unspecified Depressive Disorder. GAF score was 65. During follow up on 10Dec2018, he received diagnoses Major Depressive Disorder and Anxiety. Additional symptom was memory issues. (3) 11Aug2022 Chillicothe, OH VAMC Primary Care Physician Note. The applicant complained of anxiety and depression during a visit to establish care at the VA. There were no other details concerning the onset or associated symptoms. c. The applicant was discharged under provisions of AR 635-200 chapter 10 for the good of the service in lieu of trial by court-martial. The charges included that he was AWOL from 02Nov1984 to 15Nov1984; and from 17Nov1984 to 19Jan1985. He declined to undergo a separation physical exam. A mental status evaluation was not found. Of note, an S1 was observed on the 20Sep1983 permanent physical profile. Discharge paperwork included a statement by command indicating that there did not appear to be any reasonable ground to believe that the applicant was mentally defective, deranged, or abnormal at the time of his misconduct. d. JLV search showed that the applicant was not rated for any disabilities by the VA. JLV search revealed additional in-service treatment records that were captured in the October 2007 and December 2009 VAMC C&P Exams. These were reviewed and showed human bite injuries (26Dec1982 and 21Sep1980), nasal fracture (July 1981) with reinjury (December 1981), left knee injury getting on to his bunk (June 1982), and that he had sustained injury to his left index finger when it was caught in 50 caliber machine gun (14Oct1982). e. In recent private BH treatment records, the applicant divulged a trauma history of witnessing and participating in fights while in the military without further details. There were service treatment records which support the applicant’s report that he was involved in physical altercations while in service; however, there were no details concerning his culpability or lack thereof in these instances. There were no treatment records discussing injuries while in police custody. The records did not describe injury or symptoms attributable to a head or concussion injury. There were no available records concerning acoustic trauma to his ears. The applicant had a non combat deployment to Germany for duration just under 2 years. The record did not show PSTD, TBI or MST diagnoses. The record did show that the applicant was diagnosed with Major Depressive Disorder and Anxiety in 2018, over three decades after discharge. He presented evidence that he may have had BH diagnoses/treatment in the prior 4 years prior but did not submit the records for review. Although he claims depression because of loss his desired MOS due to hearing loss; there were no BH treatment records in service nor for approximately 3 decades after service, to provide a nexus between his reported acoustic trauma in service and the current treatment for Major Depressive Disorder and Anxiety conditions. Likewise, a nexus was not established between an in-service physical assault and his current BH diagnoses. The 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance were considered. However, evidence did not reasonably support that a BH condition was present at the time of his discharge to consider with respect to mitigation of the AWOL offences. f. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist, or did the experience during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) 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 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. 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 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. 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 for correction of the records of the individual concerned.1. 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, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency 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. 2. Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 4. Army Regulation 635-200 sets forth the requirements and procedures 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 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. 5. 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 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. 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 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. 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, 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// ABCMR Record of Proceedings (cont) AR20220001933 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1