IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220007193 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored statement 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 voluntarily enlisted in 1965 at the age of 17 to go to Vietnam, during the Civil Rights Movement. As a black American patriot during that time, he was an activist, freedom rider and fighter. He was diagnosed three months prior to his enlistment, by a psychologist with heightened racial consciousness. He was an immature patriot, conflating military discipline with the civil rights movement. 3. On his DD Form 149, the applicant notes Post-Traumatic Stress Disorder (PTSD) is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 7 December 1965, the applicant enlisted in the Regular Army, for 3 years. Upon completion of training, he was awarded military occupational specialty 70A (General Clerk). 5. On 7 January 1966, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful to an authorized acting non-commissioned officer, on or about 5 January 1966. His punishment included 7 days in correctional custody. 6. On 23 April 1966, the applicant accepted NJP under Article 15 of the UCMJ, for failing to comply with the unit’s Standing Operating Procedures by removing pages from a test booklet, on or about 21 April 1966. His punishment included forfeiture of $10 pay for two months and detainment in correctional custody for 14 days. 7. On 15 June 1966, the applicant accepted NJP under Article 15 of the UCMJ, for failing to obey a lawful order on or about 8 June 1966. His punishment included forfeiture of $43 pay for two months, 30 days restriction, and 30 days extra duty. 8. Before a special court-martial on or about 3 August 1966, at Fort Lewis, WA, the applicant was found guilty of one specification of going from his appointed place of duty without proper authority, on or about 6 July 1966. The court sentenced him to confinement at hard labor for one month, forfeiture of $62 pay for one month, and reduction to E-1. The sentence was approved on 16 August 1966. 9. On 16 February 1967, the applicant accepted NJP under Article 15 of the UCMJ, for being uncooperative and disrespectful to his squad leader, on or about 26 January 1967; reporting late for duty on or about 1 February 1967; and reporting late for duty on or about 2 February 1967. His punishment included forfeiture of $23 pay for one month and reduction to the lowest enlisted grade for two months. 10. Before a special court-martial on or about 23 May 1967, at Fort Lewis, Washington, the applicant was found guilty of: * one specification of being indebted to a taxicab company in the sum of $5 for taxifare, on or about 28 March 1967 * one specification of breaking restriction, on or about 29 March 1967 * one specification of failing to obey a lawful order, on or about 3 April 1967 * one specification of failing to go at the time prescribed to his appointed place of duty, on or about 2 April 1967 11. The court sentenced him to confinement at hard labor for six months and forfeiture of $60 pay for six months. The sentence was approved on 3 June 1967. 12. On 11 August 1967, the applicant underwent a neuropsychiatric examination evaluation. He was psychiatrically cleared to understand and participate in any proceedings, he did not suffer from any mental disease or derangement. The examining psychiatrist recommended the applicant be separated from service under the appropriate regulatory guidance. 13. On 8 September 1967, the applicant's commander notified him of his intent to initiate separation actions against him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. As the specific reasons, the commander cited the applicant's frequent incidents of a discreditable nature with military authorities and an established pattern for shirking. 14. On 11 September 1967, the applicant consulted with legal counsel and affirmed he had been advised of the basis for the contemplated separation action. Following his consultation, he waived his right to personally appear before, and to have his case considered by a board of officers. He declined to submit a statement in his own behalf and waived his right to further representation by military counsel. He acknowledged he could expect to encounter substantial prejudice in civilian life, if given either a general discharge (under honorable conditions) or an undesirable discharge. 15. The applicant's commander formally recommended the applicant's discharge, under the provisions of AR 635-212, by reason of unfitness. The separation authority approved the recommended discharge on 28 September 1967, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 16. On 5 October 1967, the applicant was separated with an undesirable discharge. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-212, for unfitness. His service was characterized as under other than honorable conditions (UOTHC) (Separation Code 28B, Reentry Code 4). He completed 1 year, 2 months, and 16 days of net active service, with a cumulative total of 223 days of lost time. He was awarded or authorized the National Defense Service Medal. 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. 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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant noted on his DD Form 149 that 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) The applicant enlisted into the Regular Army on 7 January 1966; 2) He accepted NJP under provisions of the UCMJ Article 15 on multiple occasions to include on 23 April 1966 for failing to comply with the unit’s Standing Operating Procedures by removing pages from a test booklet; on 15 June 1966 for failing to obey a lawful order; and on 16 February 1967, for being uncooperative and disrespectful to his squad leader; 3) He was found guilty, before a special court-martial at Fort Lewis, WA in 1966, of one specification of going from his appointed place of duty without proper authority; 4) Before a special court-martial on or about 23 May 1967, at Fort Lewis, WA, the applicant was found guilty of one specification of being indebted to a taxicab company, one specification of breaking restriction, one specification of failing to obey a lawful order, and one specification of failing to go at the time prescribed to his appointed place of duty; 5) On 8 September 1967, the applicant's commander notified him of his intent to initiate separation actions against him under the provisions of AR 635-212, by reason of unfitness for military service; 6) The applicant was separated on 5 October 1967 under provisions of AR 635-212, separation program number 25B (unfitness) c. A review of the electronic military medical record (AHLTA) was not conducted as the system was not in use during the applicant’s time in service. Included in the applicant’s packet was a memorandum from the Area Command Mental Hygiene Consultation Division, dated 11 August 1967, that showed the examiner determined the applicant was psychiatrically cleared to understand and participate in any proceedings, did not suffer from any mental disease or derangement, and recommended the applicant be separated from service under the appropriate regulatory guidance. No other hardcopy BH-related military medical records were provided for review. A review of the VA electronic medical record (JLV) was void of any treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian medical records were provided for review. d. The applicant contends his misconduct was related to PTSD but provided no evidence to support his contention. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience that mitigated his misconduct. However, he contends his misconduct was related to PTSD and per Liberal Consideration guidance his contention is sufficient to warrant the Board’s consideration. Kurta Questions: p (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was associated with PTSD. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant contends his misconduct was associated with PTSD, however, there is no evidence in the records of the applicant receiving a BH-related diagnosis or treatment during or after military service, and he provided no documentation to support his contention. ?? 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 discharged from active duty under the provisions of AR 635-212 due to unfitness with an under other than honorable conditions characterization of service. He completed 1 year, 2 months, and 16 days of net active service, with a cumulative total of 223 days of lost time. The Board reviewed and agreed with the medical advisor’s finding no evidence in the records that the applicant had a condition or experience that mitigated his performance/misconduct. 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. 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 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. 4. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, to carefully consider the revised 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. 6. 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. 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) AR20220007193 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1