IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220006290 APPLICANT REQUESTS: Reconsideration of his request for upgrade of his under other honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA), Board of Veterans Appeals (BVA) Decision * Fishing Certificates (two) * Certificate of Accomplishment 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 on 12 April 2011. 2. The applicant states he is requesting an upgrade based on his VA diagnosis of post- traumatic stress disorder (PTSD). He should never have been discharged and his court- martial case should have been dismissed. The house the drugs were found in was not legally his and with his current PTSD diagnosis, he was not mentally capable to deal with the court-martial. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. The applicant enlisted in the Regular Army on 14 February 1978, for 3 years. He completed training and was awarded military occupational specialty 11B (Infantryman). The applicant extended his enlistment for 3 years and 8 months on 27 June 1980. 5. The applicant was promoted to the rank/grade of sergeant/E-5 on 24 October 1980. He reenlisted in the Regular Army on 21 November 1980. 6. A drug investigation was initiated on 10 June 1980 naming the applicant as a party in a drug possession and sale case. A controlled buy was established for 22 June 1982. A field test of the marijuana purchased from the applicant yielded a positive result. The applicant was placed in pretrial confinement at that time. 7. The applicant was afforded an Article 32(b) investigation hearing on 22 July 1982; a summarized transcript of the hearing is a matter of record. 8. A Staff Judge Advocate review (pages 2 and 3) outlined the investigation and noted that the local sheriff's office declined jurisdiction. The applicant's chain of command recommended the case be referred to a General Court-Martial. The convening authority approved the recommendation on 13 August 1982. 9. Court-martial charges were preferred against the applicant on 12 August 1982 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * on or about 22 June 1982, wrongfully having in his possession 620 grams, more or less, of marihuana [sic] with intent to sell to Specialist Four (SP4) who would take it back to the Fort Knox reservation for resale * on or· about 22 June 1982, wrongfully transfer 230 grams, more or less, of marihuana [sic] to SP4 who would take it back to the Fort Knox reservation for resale * on or about 22·June·1982, wrongfully sell 230 grams, more or less, of marihuana [sic] to SP4, believing he would take back to the Fort Knox reservation for resale to members of the Army 10. The applicant consulted with legal counsel 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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 VA, 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; however, he waived this right. 11. The applicant's chain of command recommended disapproval of the applicant's request for discharge in lieu of trial by court-martial and contended that the seriousness of the charges warranted trial by court-martial. 12. The separation authority approved the applicant's request for discharge on 20 September 1982 and directed his reduction to the lowest enlisted grade with an UOTHC characterization of service. 13. The applicant was discharged on 27 September 1982 in the grade of E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, Chapter 10, for conduct triable by court-martial and his service was characterized as UOTHC. He had 4 years, 7 months, and 14 days of net active service. He was awarded or authorized the Army Good Conduct Medal, Army Service Ribbon, Non-commissioned Officers Professional Development Ribbon, Air Assault Badge, and the Expert Qualification Badge with Rifle bar. 14. The ABCMR denied the applicant's request for an upgrade on 12 April 2011 noting that after being afforded the opportunity to assert his innocence before a trial by court- martial, he voluntarily requested a discharge for the good of the service in the hopes of avoiding a punitive discharge and having a felony conviction on his record. In doing so he admitted guilt to the charges against him. 15. The applicant provides: a. A BVA decisional document, dated 15 February 2022, which shows he was awarded a 30 percent (%) disability evaluation for PTSD, effective 4 November 2021. He received a 40% evaluation for PTSD on 25 February 2022. b. Two outstanding catch certificates, dated 22 October 2018 and 7 June 2019. c. A Certificate of Accomplishment for training as an installer of Architectural Concrete overlays, dated 13 April 2002. 16. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. 17. 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. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions discharge to honorable. He contends his misconduct was related to PTSD. 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) He enlisted into the Regular Army on 14 February 1978; 2) A drug investigation was initiated on 10 June 1980 naming the applicant as a party in a drug possession and sale case. A controlled buy was established for 22 June 1982. A field test of the marijuana purchased from the applicant yielded a positive result. The applicant was placed in pretrial confinement at that time; 3) Court-martial charges were preferred against the applicant on 12 August 1982 for wrongful possession, transfer, and sell of marijuana; 3) He was discharged on 27 September 1982, under provisions of AR 635 – 200, Chapter 10, conduct triable by court-martial. c. No military medical records were available for review. A review of JLV showed the applicant is 40 percent service-connected (SC) with a 30 percent SC diagnosis of PTSD related to an assault against him and fellow unit members perpetrated by members of a different unit, while stationed at Fort Irwin, CA. According to a VA C&P Examination dated 26 January 2022, during the assault, a member of the applicant’s unit was struck in the head with a large rock reportedly resulting in the unit member’s skull splitting, exposing brain tissue. The applicant reportedly feared for his life and the life of his other unit members; the incident was verified in a lay statement from the applicant’s buddy and records from the Records Research Center Response (RRCR). The applicant’s reported symptoms at the time of the examination included issues with anger, irritability, intrusive thoughts, nightmares, anxiety, depressed mood, and chronic sleep disturbance. d. Records suggest that applicant first engaged the VA for BH-related treatment at the Cincinnati, OH, VA on 30 June 2021 complaining of chronic anxiety that increased approximately 4 years prior after he retired. During the encounter, he also reported multiple traumatic experiences during military service to include witnessing a buddy die after a parachuting accident. It should be noted that the criterion A trauma reported during this encounter differed from the criterion A trauma reported during the applicant’s VA C&P Examination referenced above. The applicant endorsed current sleep difficulties, hyperarousal, irritability, exaggerated startle response, concentration difficulties, and intrusive recollections. He was diagnosed with PTSD and referred for outpatient treatment via talk therapy and medication management. He remains in treatment as of 10 January 2023. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had a BH condition, during his time in service, however, the condition did not mitigate his misconduct. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 30 percent SC for PTSD. (2) Did the condition exist or experience occur during military service? Yes. The condition is associated with an assault experienced while on AD. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant’s misconducted consisted of wrongful possession, transfer, and sell of marijuana. This misconduct is not natural sequala of PTSD as PTSD does not impact one’s ability to know the difference between right and wrong and adhere to the right. Additionally, although the applicant selected TBI on his DA Form 149 as a factor in his misconduct, there is no evidence in the record of a TBI diagnosis and the VA C&P Examination dated 26 January 2022 explicitly shows the applicant had not been diagnosed with a TBI. Given the above, the applicant’s misconduct is not mitigated by PTSD. 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 applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. 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: Except for the correction addressed in Administrative Note(s) below, 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 to amend the decision of the ABCMR set forth in Dockets Number on 12 April 2011. 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 record shows his DD Form 214, for the period ending 27 September 1982 is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780214 UNTIL 801120 REFERENCES: 1. Title 10, U.S. Code, 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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 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. 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 post-traumatic stress disorder (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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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.) AR20220006290 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1