IN THE CASE OF: BOARD DATE: 20 September 2022 DOCKET NUMBER: AR20220002289 APPLICANT’S REQUEST: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 had a lot going on, moving around, and raising a family. On his DD Form 149, he notes post-traumatic stress disorder (PTSD) is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. He feels he was set up and never got the tell exactly what happened with this incident. 3. A review of the applicant's available service records reflect the following: a. On 22 February 1977, the applicant enlisted in the Regular Army for 6 years. Upon completion of training, he was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic). b. Before a summary court-martial on or about 8 November 1978, at Fort Hunter Liggett, CA, the applicant was found guilty of failing to go at the time prescribed to his appointed place of duty on or about 12 September 1978, willfully disobey a lawful order from a senior non-commissioned officer (NCO) and using disrespectful language towards a chief warrant officer on or about 21 September 1978. The court sentenced him to forfeiture of $230.00 and restriction for 30 days. c. On 29 November 1978, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on or about 4 November 1978. His punishment included reduction to private/E-2 and Forfeiture of $50. d. A DA Form 2173 (Statement of Medical Examination and Duty Status, dated 4 June 1979, states the applicant fell down the stairs in the barracks. According to an eyewitness, he was under the influence of alcohol at the time and fell while hanging from the railing of the third-floor balcony. e. On 3 July 1979, he was counseled due to his continuous poor work performance and bad military attitude. He was informed that he had been recommended to the company commander to begin procedures for his discharge form the military. f. On 10 July 1979, he accepted NJP under Article 15 of the UCMJ, for being disrespectful in language to a NCO and willfully disobeying a lawful order, on or about 26 June 1979. His punishment included reduction to private/E-1, restriction, and extra duty for 14 days. g. On 18 July 1979, he was counseled because he failed to show any signs of improvement and it was perceived that he had little to no concern about his military commitments. h. A DA Form 3822-R (Report of Mental Status Evaluation), dated 24 July 1979, shows he was mentally capable to participate in board proceedings deemed appropriate by command. i. On 24 July 1979, he accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on or about 15 July 1979. His punishment included forfeiture of $75 and extra duty for 14 days. j. On 1 August 1979, he accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on or about 29 July 1979. His punishment included forfeiture of $75 and extra duty for 14 days. k. On 18 September 1979, the unit commander notified the applicant he was being recommended for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraph 14-33b(1) for frequent incidents of discreditable nature with civil or military authorities. l. The applicant acknowledged receipt of the proposed separation notification on 20 September 1979. He was advised by counsel of the basis for the contemplated action, he declined to submit statements on his own behalf. He further acknowledged his understanding that as a result of discharge UOTHC he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. m. On 25 September 1979, he was formally recommended for discharge under the provisions of AR 635-200, Chapter 14. n. The separation authority approved the recommended discharge on 3 October 1979, with the issuance of an UOTHC Discharge Certificate. o. The applicant was discharged on 22 October 1979. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14 for misconduct - frequent incidents of discreditable nature with civil or military authorities, and his service characterized as UOTHC. He completed 2 years, 8 months, and 1 day of net active service. 4. 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. 5. The available record is void of and the applicant has not provided medical documents that support his contention of behavioral health or PTSD as a contributing and mitigating factor in the circumstances that resulted in his separation. 6. 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. 7. MEDICAL REVIEW: Applicant is applying to the ABCMR requesting a discharge upgrade asserting PTSD. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation. a. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. A Mental Status Evaluation was conducted on 24 July 1979 that found no significant mental illness and cleared applicant for separation. b. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. c. After review of all available information, the applicant asserts having PTSD at the time of service, which under Liberal Consideration should be considered by the Board given the nexus between PTSD, avoidance, and difficulty with authority. However, there is insufficient medical documentation to support applicant’s assertion of PTSD. There is no evidence of any in-service BH diagnoses, and the VA has not diagnosed or service connected any BH conditions. d. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes. The applicant asserts having PTSD during military service. (2) Did the condition exist or experience occur during military service? (a) Yes. The applicant asserts having PTSD during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. The applicant asserts having PTSD at the time of service, which under Liberal Consideration should be considered by the Board given the nexus between PTSD, avoidance, and difficulty with authority. However, there is insufficient medical documentation to support applicant’s assertion of PTSD. There is no evidence of any in- service BH diagnoses, and the VA has not diagnosed or service connected any BH conditions BOARD DISCUSSION: 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 discharged from active duty due to Misconduct. 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 medical documentation to support the applicant’s assertion of PTSD. There is no evidence of any in-service BH diagnoses, and the VA has not diagnosed or service connected any BH conditions. 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. 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 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 Army Board for Correction of Military Records (ABCMR). In pertinent part, it states 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. d. Chapter 18, currently in effect, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 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 UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002289 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1