IN THE CASE OF: 

		BOARD DATE: 21 February 2023

		DOCKET NUMBER: AR20220002991


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record), 9 November 2022.

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, 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, in effect, he was told a change to his discharge would 
automatically take place within a year, but he has never been notified a change was 
made.

3.  The applicant provides his application with his statement.

4.  A review of the applicant's service records shows:

	a.  On 22 October 1971, he enlisted for 3 years at age 19. He completed basic 
combat training, he completed advanced Individual Training, and he was awarded 
military occupational specialty 42E (Optical Laboratory Specialist). He attained the 
grade/pay grade specialist/E-4.

	b.  On 27 September 1974, he extended his enlistment for 1 year, lengthening his 
expiration term of service to 21 October 1975. His DA Form 4836 (Enlistment 
Extension) is not contained in the available records. 

	c.  His records contain witness statements, 10 February 1975, 13 February 1975, 
and 13 August 1975, which were part of a Criminal Investigation Division (CID) Report 
of Investigation (ROI) issued by Headquarters, Fort McPherson Field Office, 3rd Region 
U.S. Army Criminal Investigation Division Command (USACIDC). These statements 
were a part of the ROI, which substantiated findings that the applicant engaged in 
several acts of sexual contact with a minor between January and April 1974. 

		(1)  A witness statement given voluntarily by the applicant while under oath, 
10 February 1975, shows he admitted to engaging in contact of a sexual nature with a 
minor on multiple occasions between January 1974 and May 1974, in a private 
residence while he was assigned to 47th Medical Depot, (City), GA. He also admitted to 
attempted contact of a sexual nature with a second minor during the same period in the 
same residence. The witness statement was accompanied by his signed DA Form 3881 
(Rights Warning Procedure/Waiver Certificate), 10 February 1975.

      (2)  A witness statement given by (Name Redacted), 13 February 1975, shows 
the applicant engaged in sexual contact with a minor in a private residence, (City), GA, 
on multiple occasions between January 1974 and May 1974, while he was assigned to 
47th Medical Depot, (City), GA.

		(3) A third witness statement from the mother (Name Redacted) of the minors, 
13 August 1975, in effect corroborated the witness statement of the applicant and the 
second witness.

	d.  On 15 May 1975, the Commanding Officer, 47th Medical Depot notified the 
applicant he was contemplating action to accomplish his discharge by recommending a 
board of officers be convened to consider discharging him for unfitness, under the 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 13, and advised him of his rights. The applicant understood he had 
the right to consult with consulting counsel; he had the right to present his case before a 
board of officers; he had the right to submit statements in his own behalf; and he had 
the right to waive his rights and request a discharge.

	e.  On the same date, he acknowledged his rights. He requested consideration of his 
case by a board of officers with a personal appearance before the board; he requested 
representation by counsel; and he indicated statements would be submitted in his own 
behalf. He understood that he may expect to encounter substantial prejudice in civilian 
life if a general discharge under honorable conditions was issued to him. He further 
understood that as the result of issuance of an undesirable discharge under conditions 
other than honorable, he may be ineligible for many or all benefits as a Veteran under 
both Federal and State laws.

	f.  On 18 May 1975, his commanding officer requested through medical channels the 
applicant undergo a medical examination and a mental health evaluation. The mental 
health evaluation and the Report of Mental Health Evaluation (DA Form 3822-R) are not 
contained in the available records.
	g.  On 27 May 1975, counsel of the applicant requested the Chief of Psychiatry 
Services, Walter Reed Medical Center (WRMC), provide a psychiatric evaluation with 
recommendations to specific questions posed by memorandum to WRMC psychiatry 
services.

	h.  On 3 June 1975, his company commander, recommended he appear before a 
board of officers convened under the provisions of AR 635-200, chapter 13 to determine 
if he should be discharged for unfitness before the expiration of his service. His 
commanding officer recommended his discharge because of indecent acts with a child 
substantiated by a CID ROI, HQ Ft McPherson FO, 3rd Region, USACIDC. He had no 
other record of misconduct.

	i.  On 4 June 1975, Chief of Psychiatry Services, WRMC, responded to counsel's 
request, notifying him he was unable to respond to the questions set forth in the original 
correspondence.

	j.  On 5 June 1975, the Commanding Officer, Tobyhanna Army Depot, 
recommended he be separated under provisions of Army Regulation 635-200, 
Chapter 13.

	k.  On 22 September 1975, the Commanding Officer, U.S. Army Aberdeen Proving 
Ground, waived counseling and rehabilitation for the applicant.

	l.  On 24 September 1975, a board of officers convened with counsel and the 
applicant present. After hearing all the witnesses and considering the evidence 
presented during the proceeding, the board recommended the applicant be separated 
from the Army as unfit and that he be furnished a General Discharge Certificate. 

	m.  On 16 October 1975, the Commanding Officer, U.S. Army Proving Ground, 
approved the report of proceedings by the Board of officers.

	n.  On the same date, the Commanding Officer, U.S. Army Proving Ground, directed 
his discharge under provisions of AR 635-200, chapter 13 for unfitness, and directed 
issuance of a General Discharge Certificate.

	o.  On 21 October 1975, he was discharged. His DD Form 214 shows he was 
discharged under the provisions of AR 635-200, Paragraph 13-5a(2) by reason of 
unfitness-sexual perversion, with a separation program designator of JLL. He completed 
4 years of total service and was discharged on the date of his expiration term of service. 
He completed 4 years of net service this period and was awarded the Army Good 
Conduct Medal and the National Defense Service Medal.

5.  MEDICAL REVIEW:
    a.  The applicant is applying to the ABCMR requesting an upgrade of his general 
discharge to honorable.

    b.  The specific facts and circumstances of the case can be found in the ABCMR of 
Proceedings (ROP). Pertinent to this advisory are the following: 

(1)	Applicant notes a belief that upgrade in discharge would occur automatically 
within a year.
(2)	He initially enlisted on 22 October 1971.
(3)	ROP references documents associated with substantiated findings the applicant 
engaged in several acts of sexual contact with a minor primarily between January 
and April 1974.
(4)	On 15 May 1975 his commanding officer notified applicant he was contemplating 
separation via AR 635-200 Chapter 13 for unfitness. Applicant acknowledged 
and requested consideration of his case by a board of officers, representation by 
counsel, and personal appearance.
(5)	On 18 May 1975 his commanding officer requested applicant complete a mental 
health evaluation, although the records do not contain results of evaluation to 
include a Report of Mental Health Evaluation.
(6)	On 27 May 1975 counsel of the applicant requested the Chief of Psychiatry, 
Walter Reed Medical Center, provide a psychiatric evaluation with 
recommendations to specific questions; on 4 June 1975 the Chief of Psychiatry 
notified counsel he was unable to respond to questions.
(7)	His commanding officer recommended his discharge via AR 635-200 Chapter 13 
because of indecent acts with a child substantiated by relevant agencies. On 24 
September 1975 a Board of Officers recommended he be separated as unfit with 
a general discharge certificate.
(8)	He was discharged 21 October 1975.  DD214 shows discharge IAW AR 635-200 
Paragraph 13-5a(2) due to unfitness with a separation designator JLL.
    c.  Supporting Documents

All supporting documents reviewed.  Lack of citation or discussion in this section should 
not be interpreted as lack of consideration.  His application does not assert any potential 
mitigating conditions (eg, PTSD, TBI, OMH, Sexual Assault/Harassment, DADT, 
transgender, or Reprisal). He only requests update to honorable discharge.

Memorandum to Dr. Walter Reed Army Hospital, from applicant’s counsel dated 27 May 
1975 indicates applicant requested a psychiatric examination, with several questions 
posed for the evaluating provider.  Response dated 4 June 1975 references enclosure 
of psychiatric evaluation and recommendations but notes he Dr. is unable to respond to 
the questions set forth in the original correspondence.  The records available for Board 
review do not contain a psychiatric evaluation or recommendations although it appears 
to have been referenced, at least in part, in the Summary of Proceedings further 
elaborated below. 

Summary of Proceedings (Board convened 24 September 1975) includes references to 
applicant’s involvement with mental health, including psychiatric examination dated 27 
May 1975 signed by Dr (Chief, Psychiatry, Walter Reed Army Medical Center) with 
portions of examination read to the Board, and contention of suffering from a “mental 
disease” which was the cause of or contributory to misconduct.  Testimony was heard 
from two mental health professionals, Dr. (clinical psychologist) and Dr. (psychiatrist) 
both of whom had examined the applicant. (Advisor’s Note: neither of these individuals 
appear to be military providers and they appeared to testify on behalf of the applicant). 
Dr. referenced that applicant “minimized the seriousness of what he had done” and 
exhibited other symptoms suggestive of possible paranoia and depersonalization. Dr. 
referenced possible schizophrenic tendencies and paranoid feelings; “weakened 
impulse control” but “his mental illness did not cause him to commit these acts.  We all 
have impulses” although noted applicant may be less able to resist impulses than 
others.  “He could have restrained himself.  He had knowledge of what he was doing.”  
However, he also went on to opine that the mental disease was a substantiating 
contributing cause and applicant would have been able to resist if not for the disease.  
The Board recommended separation under AR 635-200 Chapter 13, as unfit with a 
general discharge.

A Brief of Respondent in essence disputing aspect of the Board’s process and 
documentation of proceedings was reviewed.  This includes references to Dr. stating 
agreement with Dr. diagnosis of schizophrenia for the applicant. Dr. also noted “his 
mental illness did not cause him to commit these acts, it contributed to his inability to 
resist the impulses.  When he did it, he knew what he was doing was wrong it was just 
that he was not as capable as you and I of not yielding to that temptation.”  Dr. opined 
that he believed applicant’s condition did not meet medical standards per AR 40-501 
Section 3-29 associated with psychosis.

The evaluation conducted at Walter Reed is not included in the record but is referenced. 
Implicit is that it found applicant did not have an unfitting medical condition. Dr. 
comments (page 6, Brief of Respondent) suggest the Walter Reed evaluation was 
consistent with psychopathy or antisocial personality/behavior. Ultimately both Dr.  and 
Dr. note that applicant’s mental disease was a substantial contributing cause (but not 
the cause) of his misconduct.

    d.  AHLTA

The Army electronic medical record, AHLTA, was not reviewed; it was not an existing 
EMR at the applicant’s time of service.  

    e.  JLV

Available VA records were reviewed via JLV.  There is no indication of any service-
connected mental health conditions. His Problem List contains no psychiatric diagnoses 
and there are no mental health related encounters, although his records date back only 
to 2017.  A History and Physical Examination dated 11 May 2017 indicates no 
psychiatric history.

    f.  Other

Query of HAIMS did not return any documents for this applicant.

Kurta Questions:

		(1)  Does any evidence state that the applicant had a condition or experience that 
may excuse or mitigate a discharge? Yes. There is evidence of a psychiatric condition 
at the time of service and discharge.  In his application, the former service member 
made no mention or assertions associated with his mental health history as a possible 
mitigator. 

		(2)  Did the condition exist or experience occur during military service? Yes. 

		(3)  Does the condition or experience actually excuse or mitigate the discharge? 
No. In his application, former service member makes no references or assertions 
associated with potential mental health mitigation.  However, there is significant 
evidence of mental health concerns in the record of litigation at the time of his offense 
and discharge. Unfortunately, the available record is incomplete and appears to conflict 
in terms of the nature of his condition and the degree to which it may mitigate his 
behavior. During his legal proceedings, there was evidence of possible schizophrenia or 
other psychotic processes as attested to by 2 mental health professionals who appear 
to be testifying on behalf of the applicant. The records suggest that their opinion was 
inconsistent with findings by Army medical professionals. Such a disconnect is often 
found in litigation especially that involving psychiatric diagnosis, culpability, and the 
ability to distinguish between right and wrong. Unfortunately, the record is void of a 
detailed accounting of any evaluation offered on behalf of the government in their case 
against the applicant, although it seems to reflect that he was fit for duty and did not 
have a mitigating psychiatric condition.  The advisor appreciates the complicated nature 
of this case, especially given the conflicting evidence and the severe nature of the 
charges against the applicant.  Of interest is that the applicant has not provided any 
additional psychiatric treatment notes and there is no evidence of any in his VA records 
(to include references to past history of psychiatric care). Schizophrenia, when present, 
is typically a severe and chronic condition requiring ongoing care.  

Even presuming a significant psychiatric illness at the time of his offenses and 
discharge, psychotic spectrum illnesses do not typically impact one’s ability to 
differentiate right from wrong and adhere to the right.  The mental health experts who 
testified during his proceedings appear to acknowledge that even in this case, the 
applicant knew what he was doing was wrong but had reduced ability to refrain on 
acting on these impulses. The BH advisor finds that any psychiatric mitigation at the 
time of service/discharge does not outweigh the grave nature of the offense and 
therefore mitigation is not warranted.

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 evidence shows a Report of Investigation 
substantiated findings that the applicant engaged in several acts of sexual contact with 
a minor between January and April 1974. His chain of command initiated separation 
action against him for unfitness. He was discharged on 21 October 1975, by reason of 
unfitness-sexual perversion. The Board reviewed and agreed with the medical advisor’s 
finding that even if the applicant suffered from psychiatric illness at the time of his 
offenses and discharge, psychotic spectrum illnesses do not typically impact one’s 
ability to differentiate right from wrong and adhere to the right. The Board agreed with 
the behavioral health advisor’s finding that any psychiatric mitigation at the time of 
service/discharge does not outweigh the grave nature of the offense and therefore 
mitigation is not warranted. 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, U.S. Code, 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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set policies, standards, and procedures to ensure the readiness and 
competency of the force while providing for the orderly administrative separation of 
Soldiers for a variety of reasons.

	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 13 established policy and provided procedures and guidelines for 
eliminating enlisted personnel found to be unfit or unsuitable for further military service. 
Despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is 
unlikely to succeed; or rehabilitation is impracticable or his is not amenable to 
rehabilitation measures as indicated by medical and or personal history record.

	d.  Paragraph 13-5a(2). An individual is subject to separation under the provisions of 
this chapter for unfitness due to sexual perversion, including but not limited to indecent 
acts with or assault upon a child.

3.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), now in 
effect, sets policies, standards, and procedures to ensure the readiness and 
competency of the force while providing for the orderly administrative separation of 
Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards 
of conduct and performance. 

	a.  Chapter 4. Separation for Expiration of Service Obligation. A Soldier will be 
separated upon expiration of enlistment or fulfillment of service obligation.

   b.  Paragraph 4-5 Characterization of Service. A Soldier being separated upon 
expiration of enlistment or fulfillment of service obligation will be awarded a character of 
service of honorable unless the Soldier is in entry-level status and service is 
uncharacterized.

4.  Army Regulation 635-5 (Personnel Separations – Separation Forms), in effect at the 
time, prescribed the specific authorities (statutory or other directives), the reasons for 
separating Soldiers from active duty, and the SPDs to be entered on the DD Form 214. 
SPD code JLL applied to Soldiers being discharged for unfitness due to unfitness-
sexual perversion under the provisions of Army Regulation 635-200, chapter 13-5a(2).

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 under other than honorable conditions 
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.  The acting Under Secretary of Defense for Personnel and Readiness provided 
clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense 
memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to 
veterans looking to upgrade their less-than-honorable discharges by expanding review 
of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health 
conditions, including PTSD; traumatic brain injury; or who reported sexual assault or 
sexual harassment. 

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to 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)	AR20220002991


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1