IN THE CASE OF: BOARD DATE: 11 March 2023 DOCKET NUMBER: AR20220006924 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to an honorable discharge, and a personal appearance via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with a four-page self- authored statement, dated 6 April 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 May 1980 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: a. When he arrived in Germany, he was assigned a weapon without a firing pin for seven weeks and to a semi-functional unit with low morale. Gang violence and racial tensions were high during that time, but this was not reported. Black gangs started harassing him and he did not know why. Most of his time in Germany felt more like a prison camp than a military base. On or around 25 April 1980, his unit was placed on high alert in response to an attempt to free hostages from Tehran. His unit was not chosen due to a lack of training. Shortly after that the unit failed an inspection. b. A black gang leader was being arrested but escaped the military police. He was in a latrine preparing to go into town and saw what was going on. He was subpoenaed to testify at the gang leader's court-martial but was reluctant because he had already been a victim of racial violence. He was threatened, his barracks door was kicked in, and he was beaten. Ultimately, he decided not to testify, which made him feel shameful and like his life was pointless. He did not like being around others and found joy being in solitude. He was offered no promise of safety for suppling evidence at a general court- martial. c. Years after his separation, he got sick from over drinking and a Veterans Affairs (VA) psychologist diagnosed him with post-traumatic stress disorder (PTSD) and moral injury. With the psychologist's support he climbed out of darkness and moved toward being mentally healthy. He started studying gang warfare and the black-market and even took some courses provided by the National Security Agency. He has been with the same lady for 23 years and has improved his self-image with the help of VA counseling and will now marry her. He also states can be contacted for a video testimony. He is also seeking compensation for events that he saw which led to his service-related PTSD and moral injury. d. He notes this request is for a reconsideration and that he has already submitted other forms seeking compensation. However, after a thorough search of ABCMR systems and records, no previous applications or documentation was found. He also noted his request is related to PTSD, other mental health issues, and reprisal/whistleblower protection, but does not provide corroborating documentation. 3. The applicant’s service records show: a. On 12 October 1979, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of his training and award of military occupational specialty 16B (Hercules Missile Crew Member), he was assigned to Germany, and arrived at his unit on 6 February 1980. b. On 21 March 1980, the applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully carrying a prohibited concealed weapon [switchblade knife], on or about 14 March 1980. His punishment included 14 days extra duty and forfeiture of $104 pay. c. On 4 April 1980, the applicant underwent a mental status examination. The DA Form 3822-R (Report of Mental Status Evaluation) shows he had no significant mental illness, had the mental capacity to understand and participate in proceeding and was mentally responsible. The form further shows the applicant admitted to being a homosexual, admitted a strong lack of trust and dislike of black Soldiers, and had a healing fracture of his right clavicle. d. On 8 April 1980, the applicant's immediate commander notified the applicant that he was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), with an honorable discharge, but noted type and final discharge decision rested with the discharge authority. As the specific reasons for the proposed action, his commander noted the applicant’s inability to adapt socially or emotionally with his peers and supervisors which proved he obviously could not adjust to the Army environment. e. On 9 April 1980, the applicant acknowledged receipt of the separation notification and was advised of the rights available to him and the effect of waiving his rights. He voluntarily consented to the separation and elected not to submit a statement in his own behalf. f. On 10 April 1980, the applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5-31. The commander noted, the applicant was unable to adapt socially or emotionally with peers and supervisors, his duty performance had been below average, he had been mentally evaluated and admitted to being homosexual, although no incidents had occurred at this unit. g. On 23 April 1980, the applicant underwent a separation medical examination. The corresponding forms show, the applicant listed he was in good health and had a broken bone. The examining provider noted he fractured his right clavicle on 23 March 1980 and found him qualified for separation. There were no mental health issues listed at this time. h. On an undetermined date, the separation authority approved the recommended discharge action and directed the applicant be issued a DD Form 257A (General Discharge Certificate). i. On 27 May 1980, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, by reason of EDP - failure to maintain acceptable standards of retention. His service was characterized as under honorable conditions (general), he was credited with completing 7 months and 16 days of net active service this period. 4. The applicant provides a self-authored letter as detailed above and a reference to contact through his VA provider. 5. The available record is void of and the applicant did not provide documentation to support his mental health condition during his period of service. 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. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his discharge to honorable and an appearance before the Board. 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) Applicant reports in essence, low unit morale, gang violence, and racial tensions while he was in Germany. He reported that he was harassed by “Black gangs.” In April 1980 his unit was placed on alert in response to the Iranian hostage situation but was not chosen due to lack of training. (2) He reports he was subpoenaed to testify at a gang leader’s court-martial but was reluctant due to previously being a victim of racial violence. He ultimately decided not to testify which led to shame and perception life was pointless. (3) He reports he was subsequently diagnosed with PTSD by the VA and has improved his functioning with the help of counseling. He noted his request is associated with PTSD, other mental health issues, and reprisal/whistleblower protection. (4) He enlisted in the RA on 12 October 1979. (5) On 21 March 1980 he accepted NJP for unlawfully carrying a prohibited concealed weapon (switchblade knife) on/about 14 March 1980. He had arrived in Germany on 6 February 1980 per records. (6) On 4 April 1980 he underwent a mental status examination. The report shows no significant mental illness and the capacity to understand and participate in the proceedings. It further indicated he admitted to being homosexual, a strong dislike and distrust of Black soldiers, and a healing fracture of his right clavicle. (7) On 10 April 1980 commander formally recommended separation via AR 635-200 paragraph 5-31 (Expeditious Discharge Program) due to inability to adapt socially or emotionally with his peers and supervisors, below average duty performance, and admission to being homosexual although no events had occurred. (8) On 27 May 1980 he was discharged; per DD214 under AR 635-200 paragraph 5- 31 by reason of EDP-failure to maintain acceptable standards of retention. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD, other mental health, and reprisal/whistleblower associated with application. His overall assertions have been summarized in the ROP to include perceptions of being harassed, racial tensions, allegedly being the victim of racially motivated violence. He references the diagnosis of PTSD by a VA psychologist. Report of Mental Status Evaluation dated 4 April 1980 reviewed. Report of Medical History also reviewed, which does not indicate any concerns associated with typical psychiatric complaints (eg, trouble sleeping, depression/worry, nervous trouble) or prior psychiatric treatment. Report of Medical Exam was also unremarkable for psychiatric complaints. 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. Records indicate applicant has a service connection for PTSD (50%) although no associated Compensation and Pension Evaluation was located for review. His initial contact with VA mental health services appears to be 2 August 2019 with rule-out diagnoses of depression and PTSD although no useful clinical data was included in the note other than referencing chronic homelessness. He was again seen in primary care mental health on 11 December 2019 due to anxiety and depression, homelessness (off and on since early 1990s). He was evaluated more extensively by a psychologist on 26 February 2020; at this time, he reported that while in Germany a soldier held a rifle threatening to kill people. He was asked to testify but he declined because the soldier’s friend threatened to kill him if he testified. He “wanted to do the right thing but I couldn’t and this thing stays on my mind a lot.” Veteran was noted to be tearful when sharing this story. MH Psychosocial Assessment of 16 April 2021 again referenced this military trauma while in Germany and history of homelessness. He was diagnosed with Anxiety Disorder, unspecified (note, homelessness and insufficient housing with involvement in VA homelessness services is a recurring theme in his records). In addition to his service connection for PTSD, other diagnoses in his record include anxiety disorder not otherwise specified; history of alcohol dependency; and major depressive disorder, recurrent. At the time of this review, he appears to be participating in an Outpatient PTSD Program with most recent contact on 21 February 2023 referencing PTSD as primary diagnosis. 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. The applicant asserts PTSD and mental health conditions associated with the circumstances of his discharge as well as reprisal/whistleblower. He did not indicate DADT, but this appears relevant as well. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by his service connection for PTSD (50%). 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD/mental health and he has been awarded 50% VA service connection for PTSD. There appears to be a clear relationship between the issues which ultimately led him to receive a service connection for PTSD and the circumstances of his discharge (in essence associated with his adaptability to the environment, relationships with others, and poor duty performance). Although likely showing poor judgment, the charge of unlawfully carrying a concealed weapon is mitigated by PTSD; this disorder (especially given the circumstances he describes) is associated with a lack of trust in others, being fearful of safety, hypervigilance, and a heightened sense of needing to protect oneself. Further supporting his request, his discharge was also associated with his reported sexual orientation at the time, which is no longer applicable following repeal of DADT. The applicant also references desire for compensation. Any application for potential increase in VA service-connected disability would need to be addressed through Veterans Benefits Administration. There is certainly no evidence that applicant did not meet medical retention standards per AR 40-501 at the time of service and/or merited medical separation with associated disability pay. 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 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board considered the advising official finding there is certainly no evidence that applicant did not meet medical retention standards at the time of service and/or merited medical separation with associated disability pay. Additionally, the advising official found although likely showing poor judgment, the charge of unlawfully carrying a concealed weapon is mitigated by PTSD; this disorder (especially given the circumstances he describes) is associated with a lack of trust in others, being fearful of safety, hypervigilance, and a heightened sense of needing to protect oneself. 2. However, the Board determined based on the preponderance of evidence there was insufficient evidence of in- service mitigating factors to overcome the misconduct. Furthermore, the Board found the applicant’s record was absent documentation to support his mental health condition during his period of service. The applicant did not provide any post service achievements or character letters of support for the Board to weigh a clemency determination. The applicant was discharged under the (Expeditious Discharge Program) due to inability to adapt socially or emotionally with his peers and supervisors, below average duty performance, and admission to being homosexual although no events had occurred and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. 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. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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. Paragraph 5-31 provided for the discharge of enlisted personnel who had completed at least six months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 5. 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. 6. 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. 7. 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) AR20220006924 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1