IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220002877 APPLICANT’S REQUEST: his under other than honorable conditions (UOTHC) discharge be upgraded and his separation code be changed. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * Service medical records (71 pages) 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 is seeking these changes due to having been in a mental state at the time that was not conducive with being a member of the military. He was not aware of his mental health condition at the time. The attached medical records show his actions were due to that mental health condition. He also provides an outline of his service, a history of childhood abuse, and his medical care. 3. The applicant enlisted in the Regular Army on 24 July 1980, for 3 years. He served in the military occupational specialty 13B (Cannoneer Crewman) with an initial duty assignment to Germany. 4. The available records do not include a copy of the applicant's enlistment documents and his DD Form 214 (Certificate of Release or Discharge from Active Duty) is of very poor quality. 5. The medical records provided by the applicant show: a. On 14 November 1980, he was admitted to the Psychiatric Outpatient Department, of the Frankfurt Army Regional Medical Center at having threatened to kill his first sergeant for waking him up for reveille in the morning. He was diagnosed with emotional instability and was released back to duty on 20 November 1980, after a one week stay in the hospital. b. On 27 January 1981, the applicant was again admitted to the hospital. His chief complaint was depression with suicidal ideation. He was diagnosed with depression with suicidal ideation, severe situational stress reaction, and a personality disorder with immature and inadequate features. c. The applicant was evacuated to Walter Reed Army Medical Center on or about 2 February 1981. d. The applicant was hospitalized in the Walter Reed Army Medical Center psychiatric ward. He was diagnosed with moderate to severe anxiety with an increased depressed mood, impulsive behavior, ambivalence, anger, suicidal thoughts; and an inability to adjust to the military. e. The discharge assessment was that he was suffering from an inadequate personality disorder with moderate impairment for further military duty, and moderate impairment for social and industrial adaptability. It was opined that these conditions had existed prior to service. f. The examining official strongly recommended the applicant be separated under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5, with an expeditious administrative discharge as it was felt that due to the lifelong nature of the conditions similar episodes of dysfunctional behavior were likely to recure. 6. Court-martial charges were preferred against the applicant on 26 June 1981, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave from on or about 28 February 1981 through on or about 23 June 1981. 6. The applicant consulted with legal counsel on 29 June 1981 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service. 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 bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could submit any statements he desired in his own behalf. 7. On 2 July 1981, the applicant's chain of command recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he receive an UOTHC discharge. 8. The separation authority approved the applicant's request for discharge on 8 July 1981, and directed that the applicant be reduced to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 21 July 1981, under the provision of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the lowest enlisted grade with separation code "JFS" (in lieu of trial by court martial) and his service was characterized as UOTHC. He was credited with 8 months and 3 days of net active service with lost time from 28 February 1981 to 22 June 1981. 10. The applicant was charged with the commission of an offense punishable under the UCMJ for which a punitive discharge is authorized. 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. 11. 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. 12. 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 13. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had mental health conditions that mitigated his misconduct. 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 enlisted into the Regular Army on 24 July 1980; 2) He was medically evacuated from Germany to Walter Reed Army Medical Center after two psychiatric inpatient hospitalizations in Germany; 3) Court-martial charges were preferred against him on 26 June 1981 for going AWOL; 4) He was separated on 21 July 1981 under provisions of AR 635 – 200, Chapter 10, in lieu of trail by court-martial. b. The applicant provided several military medical record for review, which are included in the ROP. The records show, in part, that the applicant was psychiatrically hospitalized at the Frankfurt Army Regional Medical Center (FARMC) 14 November 1980 to 20 November 1980 subsequent to threatening to kill his 1SG, after the 1SG attempted to awaken him. At the time of his hospitalization the applicant endorsed becoming infuriated by be shaken awake by the 1SG. He later endorsed the shaking triggered a flashback of being beaten by father. The applicant was diagnosed with Emotional Instability and released back to his unit. He was psychiatrically hospitalized again at FARMC on 27 January 1981 with a chief complaint of depression and suicidal ideation. He was diagnosed with Depression with Suicidal Ideation, Situation Stress Reaction severe, and Personality Disorder mixed type. He was medically evacuated from FARMC to WRAMC on or about 2 February 1981. While at WRAMC he was diagnosed with Adjustment Disorder with mixed emotional features, and Other Personality Disorder, inadequate type. He was discharged from WRAMC on or about 10 February with a diagnosis of Inadequate Personality Disorder. c. A review of the VA electronic medical record (JLV) appears to show the applicant is currently not service-connected, however, a recent C&P dated 14 September 2022 shows the applicant will likely be awarded a service-connected diagnosis of Mood Disorder Unspecified. JLV is void of the applicant receiving any treatment at a VA Medical Center, but the C&P shows the applicant has had multiple psychiatric hospitalization (1983, 1986, 1988) since his discharge from service. d. A letter authored by the applicant suggest a history of childhood physical abuse and auditory hallucination (hearing voices), prior to service. The hallucination reportedly stopped during initial entry training and began again after the incident whereby he was shaken awake by his 1SG. The shaking event reportedly triggered a flashback of being beaten by his father. His mental health reportedly continued to deteriorate from there. The applicant contends that while on leave there was “so much going on in my mother’s house I totally forgot I was still in the Army”. He reportedly called the Army Post once he realized he was still in the Army. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had a condition that mitigated his misconduct. The applicant military medical records suggest a history of diagnoses while on active duty to include depression with suicidal thought, and a recent VA C&P examination dated 14 September 2022 shows the applicant with a diagnosis of Mood Disorder, unspecified, that appears to be service connected. f. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant military medical records suggest a history of diagnoses while on active duty to include depression with suicidal thought, and recent VA C&P examination dated 14 September 2022 shows the applicant with a diagnosis of Mood Disorder, unspecified, that appears to be service connected. (2) Did the condition exist or experience occur during military service? (a) Yes. The applicant was diagnosed with depression with suicidal ideation and other disorders while stationed in Germany. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes. The applicant military medical records suggest a history of diagnoses while on active duty to include depression with suicidal thought, and recent VA C&P examination dated 14 September 2022 shows the applicant with a diagnosis of Mood Disorder, unspecified, that appears to be service connected. The applicant contends while on leave, given all that was going on in his mother’s house, he forgot he was still in the military. Once he remembered he reportedly turned himself in. There is also the possibility the applicant was not motivated to leave his family and return to an environment that contributed to his depression and suicidal ideation. In either instance, memory problems, avoidant behavior, and diminished motivation are sequelae of mood disorders, and would be mitigating factors of his misconduct. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct and the reason for separation. The Board reviewed the medical records provided by the applicant and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 21 July 1981 showing • Characterization of Service: Under Honorable Conditions (General) • Separation Authority: No change • Separation Code: No change • Reentry (RE) 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. 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. 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 (ARBA) 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 635-200 sets forth the basic authority 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It provides that the separation code "JFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the Good of the Service, in lieu of court martial. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 1-2, in effect at the time, provided that no enlisted member may be referred for physical disability processing when action has been or will be taken to separate him or her for misconduct, except when the officer exercising general court- martial jurisdiction determines that the disability was the cause or the substantial contributing cause of the misconduct, or that circumstances warrant physical disability processing in lieu of administrative processing. 6. 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 [Wilkie Memorandum], 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 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) AR20220002877 1 ARMY BOARD FOR THE CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS 1