IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002391 APPLICANT’S REQUEST: reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-Authored Statement * Character Letters (5) 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 AR1999021659 on 16 September 1999. 2. The applicant states he requests an upgrade due to extenuating circumstances. He states he went absent without of leave (AWOL) to help his family. He intended to return to duty and fulfill his Army contract; however, he was not afforded the opportunity. He lists post-traumatic stress disorder (PTSD) as a condition related to his request. 3. The applicant provides: a. Self-authored statement where he admits that he was stupid, young, and wild; but he has changed. He grew up as he got older and stopped getting in trouble. He affirms he was proud to wear the uniform and represent his country. b. Character Reference Letters (five) (enclosed for the Board’s review) that collectively attest to his moral character, honesty, trustworthiness, reliability, politeness, passion for helping others and the support he provides his family. 4. On 21 January 1971, the applicant was inducted into the Army of the United States. 5. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice while stationed at Fort Ord, CA, on/for: * 22 February 1971, being AWOL from on or about 16 February- 1971 to on or about 17 February 1971 * 12 April 1971, failing to go at the time prescribed to his appointed place of duty, on or about 12 April 1971 6. Before a special court-martial on or about 14 July 1971, at Fort Sill, OK, the applicant was found guilty of being AWOL from on or about 1 June 1971 to on or about 7 July 1971. The court sentenced him to confinement at hard labor for four months and forfeiture of $50 pay per month for three months. On 19 July 1971, the convening authority approved the sentence. 7. On 27 August 1971, his immediate commander requested elimination proceedings under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. The specific reasons: * since his arrival, he maintained that he had no intention to returning to duty and * will continue to go AWOL in order to secure a discharge * when given a detail, he is slow to react and without constant supervision, he is unable to complete a task * he constantly displays resentment towards authority figures when supervised * he feels he is wasting his time and the Army’s time and will accept any type of discharge * because of his negative attitude, all counseling efforts had been totally negligible; his contributions to the military service would be detrimental at best 8. Subsequently, the applicant underwent a psychiatric evaluation which found him mentally capable to understand and participate in board proceedings. 9. On 11 September 1971, the applicant acknowledged receipt of the proposed separation notification and acknowledged that he: had been advised by counsel of the basis for contemplated action to accomplish his separation for unfitness, waived consideration of his case by a board of officers, elected not to submit statements in his own behalf, acknowledged he may be deprived of many rights and benefits as a Veteran under both Federal and State law and may encounter substantial prejudice in civilian life if he were issued a general discharge 10. On 13 September 1971, the applicant's commander formally recommended his discharge under the provisions of AR 635-212, for unfitness. 11. On 15 September 1971, the separation authority approved the recommended action and directed the issuance of an Undesirable Discharge Certificate. 12. The applicant was discharged on 21 September 1971. His DD Form 214 confirms he was discharged under the provisions of AR 635-212, with Separation Program Number "28B" (unfitness). His service was characterized as UOTHC. He completed 4 months, and 11 days of net active service this period. 13. On 9 September 1998, the applicant petitioned the ABCMR for an upgrade of his discharge. After careful consideration, the Board determined the applicant’s characterization of service was commensurate with his overall record of service. Accordingly, his request for relief was denied. 14. 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. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 15. The ABCMR staff requested that the applicant provide medical documents to support his PTSD claim on 6 May 2022. He did not respond with medical documents supporting his contention of PTSD as a contributing factor that resulted in his discharge. 16. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his Under Other Than Honorable Conditions (UOTHC) to Honorable. The applicant asserts his request is due to extenuating circumstances and contends his misconduct was related to PTSD. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant entered the Army on 21 January 1971; 2) The applicant was absent without leave (AWOL) on two occasions (16 – 17 February 1971 and 1 June to 7 July; 3) He was discharged on 21 September 1971 for reasons of unfitness. b. Military medical documentation reviewed includes: 1) Standard Form 88 (Report of Medical Examination), dated 9 September 1971, indicating no defects and diagnoses. 2) ALDRM Form 196 CT 82 (Report of Mental Status Evaluation), not dated, which indicates that the applicant had a normal mental status examination. He had the mental capacity to understand and participate in administrative proceedings; was mentally responsible; was psychiatrically cleared for any administrative action deemed appropriate by command. c. The military electronic medical record, AHLTA, was not reviewed as it was not in use during applicant’s period of service. Review of the VA medical record, JLV, was void of any treatment history of the applicant. Further the applicant did not provide any hardcopy records for review. The applicant contends a history of PTSD related to military service, however, there is no evidence to support his contention. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant does not have a BH condition that would mitigate his misconduct. d. Kurta Questions: * Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? No. There is no evidence to support the applicant contention of PTSD and the applicant failed to provide proof despite the Board requesting that he do so. * Did the condition exist or experience occur during military service? N/A * Does the condition/experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was 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 discharged from active duty due to unfitness. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. a. A majority of the Board determined that the applicant provided five Character Reference Letters that collectively attest to his moral character, honesty, trustworthiness, reliability, politeness, passion for helping others and the support he provides his family. Although his service did not rise to the level required for an honorable characterization, a majority of the Board determined an upgrade to general, under honorable conditions discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. b. The member in the minority found that although the applicant submitted character reference letters, the fact remains that he twice received NJP, one for AWOL, and was once convicted by a special court-martial also for AWOL. He told his chain of command he had no intention to returning to duty and will continue to go AWOL in order to secure a discharge. He completed 4 months, and 11 days of net active service. Based on a preponderance of evidence, the member in the minority determined that the character of service he received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR1999021659 on 16 September 1999. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by him a DD Form 214 for the period ending 21 September 1971 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 3. 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. 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; 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. 5. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002391 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1