IN THE CASE OF: BOARD DATE: 6 March 2023 DOCKET NUMBER: AR20220003347 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) to a fully honorable discharge and change the narrative reason for separation from unsatisfactory performance to medical. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he requests that his discharge be upgraded, a change in character of service and reason for separation be changed to medical. His platoon sergeant was a Vietnam War veteran and he verbally, physically, and emotionally abused him at all times. He made colorful comments, choked, smacked, grabbed, picked him up and threw him; broke his jaw and he received no support from the chain of command in coping with what was going on. He is seeking justice for what happened to him and still affects him to date as he was afraid of him then and those memories still haunt him. He feels after a close review of the statements of witnesses and his platoon sergeant the Board will see that the chain of command rushed proceedings to bar him from reenlistment even though he had an extension in place due to him having married a Korean national. He was admitted to the hospital for 30 days with his mouth wired shut after he broke his jaw. He was severely depressed and had no communication with his spouse so soon after her miscarriage and our grief. The chain of command rushed to counsel, compile an administrative separation packet, mental evaluation (28 Jan 83) and the initial DA Form 2173 (17 Jan 83) states in line of duty and no formal line of duty investigation wasn't required. A year later (14 Jan 84) a (DD Form 261) Report of Investigation was submitted that contradicts the initial report and well after all parties had left the command. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 13 October 1977. He held military occupational specialty 12C (Bridge Crewman). b. On 3 December 1979, at Fort Stewart, GA, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being disorderly. His punishment consisted of suspended reduction to E-21 and forfeiture of pay. c. On 19 December 1979, the suspension of punishment o reduction to E-2 (suspended for 60 days), forfeiture of $75 pay imposed on 3 December 1979 was vacated and the unexecuted portion was ordered executed. d. He reenlisted on 29 May 1980, and he then served in Korea from 4 August 1981 to 15 February 1983. While in Korea, he accepted additional NJP under Article 15 of the UCMJ on/for: * 12 April 1982, willfully disobeying a lawful order; his punishment consisted of suspended reduction to E-3, suspended forfeiture of pay, and extra duty and restriction * 3 August 1982, willfully disobeying a lawful order; his punishment consisted of suspended reduction to E-3 e. On 2 December 1982, he was admitted to the US Army Hospital, Seoul, Korea. Following a drinking bout and a verbal/physical altercation with his platoon sergeant, the applicant was struck in the mouth by his platoon sergeant. The blow resulted in a broken jaw. Investigation reveals that the applicant provoked a retaliatory response from the platoon sergeant by challenging the platoon sergeant to a fight and deliberately disobeying his order to remain seated. Because the injury was proximately caused by intentional misconduct of the applicant, his injury was found “Not in Line of Duty – Due to Own Misconduct “ f. On 31 January 1983, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct: missing formation, absent from appointed place of duty on five occasions, drinking on duty, and being drunk and disorderly. The applicant was provided with a copy of this bar. His battalion commander approved it. g. On 25 January 1983, the applicant’s immediate commander notified the applicant of his intent to initiate elimination action against him in accordance with chapter 13-12 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for unsatisfactory performance. The specific reasons: (1) the seriousness of the circumstances is such that his retention would have adverse impact on military discipline, good order, and morale; and (2) his ability to perform duties dffectively in the future, including potential for advancement of leadership, is unlikely. h. The applicant acknowledged receipt. He consulted with legal counsel. He indicate dhe had been advised of the basis for the contemplated action under the provisions of chapter 13, AR 635-200. He may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He understood if he received a discharge certificate less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading but that does not imply that his discharge would be upgraded. He elected not to submit a statement on his own behalf. i. On 27 January 1983, the unit commander recommended separation under the provisions of chapter 13, AR 635-200 for unsatisfactory performance. The commander stated the since his assignment to this company, the applicant has been counseled on numerous occasions by his entire chain of command; all to no avail. His lackadaisical attitude, manifested by substandard duty performance, military bearing, and a severe lack of self-discipline are all indicative of his desire not to soldier and make an effective contribution to the overall mission of this unit; Army total. The best interests of both, the applicant and the Army would be served with his expeditious elimination from the service under the above cited provisions. j. On 30 January 1983, the intermediate commander reviewed the elimination proceedings and recommended approval. He stated since entering the military, this service member has accumulated a total of 3 Article 15's for various violations of the Code. He has been afforded ample opportunities toward rehabilitation and has responded in the absolute negative. k. On 10 February 1983, the separation authority approved the applicant’s discharge under the provisions of chapter 13, AR 635-200 and directed that he be issued a General, Under Honorable Conditions Discharge Certificate. l. On 16 February 1983, the applicant was discharged from the Army. His DD Form 214 (certificate of Relesae or Discharge from Active Duty) shows he was discharged, in the rank/grade of specialist/E-4 in accordance with chapter 13 of AR 635-200 for unsatisfactory performance with an under honorable conditions (general) characterization of service. He completed 5 years, 4 months, and 4 days of active service. It also shows:. * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, Sharpshooter Badge with Grenade Bar, and Expert Marksmanship with Rifle Bar * Item 18 (Remarks) listed his reenlistment period but not his continuous honroable service * Item 26 (Separation Code), JHJ/JKJ * Item 27 (Reenlistment Code), RE-3 * Item 28 (Narrative Reason for Separation), Unsatisfactory Performance. 4. There is no indication he petitioned the Army Dischareg Review Board for review of her discharge within that board’s 15-years statute of limitations. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge to a fully honorable discharge and change the narrative reason for separation from unsatisfactory performance to medical. b. 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 in the Regular Army on 13 October 1977; 2) On 3 December 1979, the applicant accepted nonjudicial punishment (NJP) for being disorderly; 3) The applicant accepted NJP again on 12 April and 3 August 1982 for willfully disobeying lawful orders; 4) On 2 December 1982, the applicant had his jaw broken by his platoon sergeant. An investigation revealed the applicant provoked a retaliatory response from the platoon sergeant by challenging the platoon sergeant to a fight and deliberately disobeying his order to remain seated; 5) On 31 January 1983, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his misconduct: missing formation, absent from appointed place of duty on five occasions, drinking on duty, and being drunk and disorderly; 6) On 16 February 1983, the applicant was discharged from the Army, Chapter 13, unsatisfactory performance with an under honorable conditions (general) characterization of service. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. No additional hardcopy civilian treatment records were provided for review. d. The applicant asserts he was “verbally, physically, and emotionally abused” by his platoon sergeant, which mitigates his misconduct. There is insufficient evidence the applicant was diagnosed with a mental health condition while on active service. However, after leaving active service, the applicant has experienced a lengthy history of mental health conditions. The applicant did not provide civilian behavioral treatment records, but a review of JLV provided evidence the applicant began to be treated by the VA in 2004 for psychosis, suicidality, and aggressive behavior. There were inconsistent reports on his history of behavioral health symptoms, but the applicant reported significant alcohol abuse both during and after his active service, bipolar disorder, a history of violent behavior, and suicidality. He was admitted into an inpatient psychiatric program after experiencing a significant increase in psychosis in 2004. He was reported to have significant psychotic symptoms related to his platoon sergeant to include paranoid delusions and visual and auditory hallucinations. The applicant engaged in behavioral health treatment inconsistently within the VA system of care for about ten years. The applicant receives 100% service-connected disability for schizoaffective disorder since 9 October 2021. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was that abused by his platoon sergeant which contributed to his misconduct. B. Did the condition exist or experience occur during military service? Yes, the applicant contends the abuse occurred while he was on active service. C. Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report that the applicant experienced abuse from his platoon sergeant. The results of the investigation stated the applicant instigated the fight, and the applicant had a history of disorderly behavior and alcohol abuse. He does receive service-connected disability for schizoaffective disorder, but there is insufficient evidence to suggest the onset of his symptoms began in active service or his condition was negatively impacted by his military service. There is clear evidence the applicant had a history of unsatisfactory behavior and insufficient evidence to support a change to the narrative reason for separation. Nevertheless, the applicant contends he had experienced abuse that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board considered the applicant's statement, record of service, the frequency and nature of the misconduct, the reason for his separation and whether to apply clemency. The Board noted the multiple offenses leading to the applicant’s separation and the absence of evidence attesting to post- service achievements or letters of reference to weigh in support of a clemency determination. Based on the preponderance of evidence available for review, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 1977-10-13 to 1980-05-28 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 (AR) 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. 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 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. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 7. 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. 8. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code "JHJ" is the correct code for Soldiers separating under chapter 13 of AR 635-200 because of unsatisfactory performance. The SPD/RE code cross reference table in effect then shows an SPD of "JHJ" has a corresponding RE code of 3. 9. AR 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment 10. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003347 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1