IN THE CASE OF: BOARD DATE: 8 February 2023 DOCKET NUMBER: AR20220006770 APPLICANT REQUESTS: Reconsideration of his previous requests for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for Review of Discharge), with a self-authored statement 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 AR20120022367 on 18 July 2013. Where the Board determined the applicant’s characterization of service was neither in error nor unjust and denied his request for relief. 2. As a new argument, the applicant states he is 65-years old suffering from heart problems, diabetes, high cholesterol, and is legally blind. He is requesting a second chance in life, to correct his wrongs. He refers to his military files and psychiatrist for questions concerning his medical conditions. 3. The applicant's service record shows: a. On 27 April 1977, the applicant enlisted in the Regular Army. Upon completion of training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman). He was assigned to Germany and arrived on 13 August 1977. On 28 October 1979, he was honorably discharged for immediate reenlistment. b. On 29 October 1979, he reenlisted for a 3-year obligation. On 22 April 1979, he departed Germany enroute to Fort Jackson, SC, for training in MOS 71L (Administrative Specialist). He was academically dropped from the 71L course on 10 July 1980. He departed Fort Jackson, SC, enroute to Fort Polk, LA, on 6 August 1980. He was reported absent without leave (AWOL) from Fort Polk, LA, on 21 August 1980. c. On 13 November 1981, the applicant underwent a mental status evaluation; his DA Form 3822 (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, he was mentally responsible, and met retention standards. d. On 16 November 1981, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 21 August 1980 through on or about 7 November 1981. e. On 18 November 1981, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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. He elected not to submit a statement in his own behalf. f. On 1 December 1981, the applicant's commander recommended approval of his request for discharge. The commander noted the applicant did not appear to be mentally defective, deranged, or abnormal. The intermediate commander recommended approval on the same day. g. On 11 December 1981, the separation authority approved the applicant's request for discharge for the good of the service, in lieu of court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC service characterization. h. On 1 February 1982, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial. His service was characterized as UOTHC and he was reduced to the lowest enlisted grade. He was credited with completing 3 years, 6 months, and 19 days of net active service this period. He was awarded or authorized the Army Service Ribbon, Overseas Ribbon, and two marksmanship badges. 4. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. 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. 5. On 23 November 2012, the applicant applied to the ABCMR for an upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request, he did not allege medial issues at that time. 6. 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. 7. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests reconsideration of his petition for an upgrade in the characterization of his service currently designated as Under Other Than Honorable Conditions. He stated that he currently suffers from heart disease, diabetes, high cholesterol and legal blindness. He indicated that events that occurred during service contributed to his discharge. He previously applied in 2013. b. The complete facts and circumstances surrounding the applicant’s discharge from service are unknown; however, the available military record was summarized in the ROP. Of note, the applicant enlisted in the Regular Army 27Apr1977. His MOS was 13B10 Cannon Crewman. On 01Feb1982, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He was charged with being absent without leave from 19800821 to 19811106. c. In the 13Nov1981 Report of Mental Status Evaluation, no abnormalities were noted in the mental status exam. He was assessed to be mentally responsible and capable of participating in the administrative proceedings. He was deemed to have met retention standards of AR 40-501 chapter 3. No mental health diagnosis was noted. d. Medical records after discharge. (1) 24Aug2016 Mental Health Initial Evaluation Note. Clinical Psychologist. He was referred to rule out PTSD. He did not see combat; however, reported that he witnessed children being burned to death in a car fire while stationed in Germany in 1978. He related that his niece also died in a house fire in 1983 and noted that this event triggered memories of the 1978 incident. Reported symptoms included chronic sleep issues, recurrent nightmares (content not recalled, “evil”), and auditory and visual hallucinations. He also described increased sadness recently due to failing vision test for driving. He was not working and reported being disabled since 2000. He had suicide ideation in 2001 due to marital strain at the time. He remained married to current wife of 33 years. He previously worked in construction and warehousing but had to stop in 2000 because of failing sight. (2) 23Sep2016 Mental Health Initial Evaluation Note. Psychiatry Note. The provider explored his current symptoms further. New information reported: The applicant divulged having experienced military sexual trauma (MST). He described it as being “misused”. It happened once by a male soldier who was a stranger to him. He never told anyone because he was ashamed. His wife affirmed that he had also told her recently that someone had touched him. Diagnoses (based on criteria from DSM 5): Persistent Depressive Disorder, and Unspecified Anxiety Disorder. Also noted were the following: Obstructive Sleep Apnea (not on CPAP), Vertigo, Cataract, Glaucoma, Hereditary Retinal Dystrophy (legally blind), Back Pain, Tinnitus, and Hearing Loss. (3) 15Feb2017 Mental Health Admission Evaluation Note. He reported two primary traumas in his life, one in which he witnessed children die in a car fire in 1977, and the other unspecified (sexual) trauma which occurred in the late 1970s. He stated that since leaving the military in 1982 he had experienced symptoms of PTSD and depression, which had worsened in recent years. In particular, he noted that he was frequently bothered by intrusive memories of the traumas, he made attempts to avoid reminders of the traumas, he experienced nightmares and occasional flashbacks, and experienced psychological distress and physical anxiety when reminded of the traumas, for instance at the sound of children screaming. Diagnoses: Depression and PTSD. e. JLV search revealed that the applicant has been service connected by the VA for Tinnitus (10%) only, to date. There were no records in in AHLTA, HAIMS or iPERMS due to the age of the case. On 18Nov1981, the applicant elected not to have a separation physical. Despite there not being a mental health diagnosis found during the 13Nov1981 Report of Mental Status Evaluation, the applicant’s post military record did reveal the presence of PTSD with onset in the military, as well as MST. Therefore, with regard to the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017, Clarifying Guidance, these diagnoses are mitigating for the AWOL offence which led to the applicant’s discharge. The traumas occurred prior to his AWOL offense. Avoidance behavior can be a sequela of PTSD; therefore, his AWOL misconduct may have been a manifestation of his mental health condition. There is no documentation to suggest he did not meet medical retention standards at the time of his discharge. Kurta Questions Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Did the condition exist, or did the experience occur during military service? Yes. Does the condition or experience actually excuse or mitigate the discharge? Yes. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency consideration for requesting upgrade of discharge characterization of service. Upon review of the applicants’ petition, available military records and medical review the Board noted the advising official findings that with regard to the 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017, Clarifying Guidance, these diagnoses are mitigating for the AWOL offence which led to the applicant’s discharge. The traumas occurred prior to his AWOL offense. Avoidance behavior can be a sequela of PTSD; therefore, his AWOL misconduct may have been a manifestation of his mental health condition. 2. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. However, the Board determined the applicant’s record was absent his first period of honorable service. Based on this, the Board granted partial relief to correct the applicant’s record reflect his continuous honorable service for the period of 27 April 1977 to 28 October 1979. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show” • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE ACTIVE SERVICE FROM 27 April 1977 until 28 October 1979. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of applicant’s discharge. 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 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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 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. c. Chapter 10 provided 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 UOTHC discharge was normally considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 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) AR20220006770 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1