IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220002930 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded. 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 enlisted with good intentions but due to trauma during his service he has been diagnosed with post-traumatic stress disorder (PTSD). He is currently in therapy dealing with the abuse he incurred in the military. He is still receiving treatment and medications. 3. The applicant's complete military records are not available for review; therefore, this case is being considered using very limited documents. 4. The applicant enlisted in the U.S. Army Reserve on or about 10 December 1976. He entered active duty on 10 February 1979, in military occupational specialty 12B (Combat Engineer). 5. The applicant accepted non-judicial punishment on 30 March 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 1 March 1979 to on or about 5 March 1979. His sentence included reduction to paygrade E-1, forfeiture of $100.00 pay, restriction, and extra duty for seven days. 6. On 11 April 1979, the applicant's immediate commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-4, for unsuitability. 7. By memorandum dated 12 April 1979, the Alcohol and Drug Control Officer (ADCO) stated: a. The applicant came in to the ADCO office in mid-March, claiming he had a drug problem and needed help. An intake appointment was set up with the staff psychiatrist. The psychiatrist said the applicant had serious mental problems, bordering on schizophrenic paranoia, with aggressive behavior patterns. b. While the applicant was enrolled at the program, he demonstrated a totally recalcitrant attitude towards rehabilitation, continually made insubordinate remarks and innuendos towards the senior noncommissioned officers. Ms. the clinical director, normally handles the most troublesome clients and is remarkably successful in dealing with these people. However, the applicant was unresponsive to her efforts, and it was clear that his only motive in coming to the ADCO was to avoid shipment to Germany. c. After one week in the program, the applicant had to be removed from the facility. He had been going into counselor's offices, looking in desks, and disturbing counselling sessions, until he finally sat down in an office and refused to leave. The only recourse available was to call the military police and forcibly remove him. d. The applicant was undoubtedly the least motivated Soldier who ever walked in claiming he needed help. He was openly hostile towards the program and its personnel and was trying to evade his responsibilities as a Soldier and a citizen. He recommended the applicant be eliminated from the Army as soon as possible. 8. The applicant consulted with legal counsel on 1 May 1979. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He waived his administrative rights and elected not to submit a statement in his own behalf. 9. A Psychiatric Evaluation, dated 7 May 1979, states: a. He went through eighth grade in regular schools and four grades in reform school where he was placed because of violent behavior. b. He had a past medical history of: (1) One hospitalization on Psychiatry Service, Wilson Army Hospital, from 15 March to 27 March 1979, when he was admitted for drug abuse. (2) As a teenager he was seen by a psychiatrist twice. At the age of 12, he was placed at a Group Home for about a year when he was involved with street gangs and when he tried to kill his sister. (3) He was heavily involved with drugs at an early age, using mostly speed and Marijuana, and started to drink at the age of 10. c. The Mental Status Examination indicated he was oriented, alert, and non- psychotic with quiet and cooperative behavior. He denied hallucinations and delusions and suicidal thoughts. There was no evidence of a thought disorder. His intellectual functioning was not impaired. d. After being activated he was unable to adjust properly, continued to abuse drugs and alcohol and had problems in conforming his behavior to that required in the military environment. Because of his longstanding problems with drug and alcohol abuse it was recommended that he be discharged from the service. He was psychiatrically cleared for any administrative action deemed appropriate by command. 10. On 11 April 1979, the applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-4b, for unsuitability. As the reason his commander noted, the applicant was recommended for elimination by the Wilson Army Hospital, Psychiatric Department. He was considered unsuitable and unadaptable to military service due to a personality disorder. 11. On 8 May 1979, the separation authority approved the discharge recommendation and directed he be issued a DD Form 257A (General Discharge Certificate). 12. The applicant was discharged on 11 May 1979. His DD Form 214 (Report of Separation from Active Duty) notes he was discharged as a Reservist of the Army for "Unsuitability Personality Disorder". He was credited with 3 months and 2 days of net active service for this period. His service was characterized as under honorable conditions. 13. Army Regulation 635-200 was revised on 1 December 1976 following the settlement of a civil suit. Thereafter, the type of discharge and the character of service imposed were to be determined solely based upon the individual's military record during the respective period of enlistment. Further, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. a. The Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. b. The 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 was "clear and demonstrable reasons" why a fully honorable discharge should not be given. 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. 15. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting his under honorable conditions, general discharge be upgraded. He contends misconduct was related to PTSD symptoms associated with trauma endured during basic training. a. Based on the applicant’s petition referring to a diagnosis of PTSD, the Army Review Board Agency medical staff provided a medical review for the Board members. The applicant enlisted in the U.S. Army Reserve on or about 10 December 1976. He was activated to active duty on 10 February 1979, in MOS 12B (Combat Engineer). He was discharged on 11 May 1979 under AR 635-200, Chapter 13-4b, for unsuitability. b. During his time on active duty the applicant went AWOL on two occasions: 1 March 1979 to 5 March 1979, and again 16 March 1979 to 22 March 1979. The second instance occurred while the applicant was hospitalized to receive treatment for drug abuse. A Psychiatric Evaluation dated 7 May 1979 noted the applicant had a significant history of alcohol and drug abuse, and repeated conflicts with the law prior to active- duty service and recommended the applicant be discharged because of these problems. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. c. A review of JLV shows the applicant is 30-percent service-connected for a diagnosis of PTSD associated with his time on active duty. The effective date of SC for PTSD is 21 November 2019. Records show the applicant engaged BH at the Philadelphia, PA VA 7 April 2014. He was diagnosed with Depression NOS, Prolonged Grief, and r/o PTSD, secondary to the loss of his son to murder two years prior. The record is void of BH follow-up visit for this encounter. The next encounter occurred on 14 December 2018 the applicant was treated for depression and grief. During the course of ongoing treatment the applicant was diagnosed with MDD, Substance Use Disorder and PTSD. PTSD was deemed the result of trauma experienced during BCT. That applicant remains in treatment as of 20 September 2020 de. After reviewing the available information and in accordance with the 3 Sep 2014 Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant’s misconduct is mitigated by his PTSD diagnosis. Questions (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. A review of JLV shows the applicant is 30-percent service-connected for PTSD associated with trauma experienced during BCT. (2) Did the condition exist or experience occur during military service? Yes. The diagnosis is associated with the applicant’s time in active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant contends his decision to go AWOL was a result of PTSD. He was reportedly traumatized during BCT and had difficulty being in a military environment since. The decision to avoid a potentially trigger environment is consistent with a PTSD diagnosis. The applicant also contends his substance abuse was an attempted to self-medicate against PTSD. Although there is a nexus between substance abuse and PTSD, the applicant endorsed a history of alcohol misuse that began when he was ten- year-old and a history of substance abuse since early teens. It is more likely that applicant decision to use substances were a result of a long-standing substance us disorder. BOARD DISCUSSION: After reviewing the application, 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 discharged from active duty due to unsuitability with a general, under honorable conditions discharge. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board reviewed but did not concur with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. The Board determined his NJP for AWOL coupled with indifferent and unresponsive attitude towards the rehabilitation efforts to help him overcome his drug problem, and hostility towards his rehabilitation efforts, as well as the length of his service of 3 months and 2 days, his service clearly did not rise to the level required for an honorable characterization of service. 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 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. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13 in effect at the time 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. Paragraph 13–5b (2) of the version in effect at the time applied to Soldiers being separated for character and behavior disorders, later deemed personality disorders. 4. Army Regulation 635-200 was revised on 1 December 1976 following the settlement of a civil suit. Thereafter, the type of discharge and the character of service imposed were to be determined solely based upon the individual's military record during the respective period of enlistment. Further, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. a. The Brotzman Memorandum required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. b. 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 was "clear and demonstrable reasons" why a fully honorable discharge should not be given. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20220002930 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1