IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20220007273 APPLICANT REQUESTS: Reconsideration of his prior requests for upgrade of his undesirable discharge to an under honorable conditions (general) discharge and a change of the narrative reason for separation to medical. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) decisional document, dated 21 June 2021 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 Numbers: * AC93-11075 on 26 April 1995 * AR20080002771 on 24 June 2008 * AR20080018405 on 24 March 2009 * AR20100028754 on 30 June 2011 * AR20140018581 on 20 January 2015 2. As new evidence and argument, the applicant provides a VA decisional document that rendered the determination that he was insane at the time of discharge. The applicant states his discharge is unjust because his misconduct was caused by mental problems, and he wasn't properly evaluated. 3. The applicant enlisted in the Regular Army on 15 October 1970, for 3 years. He completed training and was awarded military occupational specialty 63B (Automotive Maintenance). The highest grade he attained was E-4. 4. Summary Court-Martial Order Number 4, issued by Headquarters, 2nd Brigade, 3rd Armored Division on 1 March 1973, shows the applicant was found guilty of being drunk and disorderly in public, two specifications of assault, and resisting arrest on or about 30 December 1972. The court sentenced him to reduction to E-3, forfeiture of $50 pay for a month, and restriction for 40 days. 5. On 2 May 1973, the applicant was reported as being absent without leave (AWOL) from on or about 2 May 1973 to 24 May 1973. His record is void of the circumstances surrounding this incident. 6. On 31 July 1973, the applicant is shown to have accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice for being AWOL from 1 June to 11 June 1973. His imposed punishment was a reduction to pay grade E-3 (suspended for 2 months). A copy of this action is not of record; however, a commander's inquiry shows the probable cause or motive indicates there was no evidence of intent not to return. 7. The applicant was apprehended on 22 August 1973 at Mulberry, KS, he was confined at Fort Riley, KS, pending discharge action. 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 13 September 1973, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 9. The applicant's immediate commander notified the applicant on 19 September 1973 of his intent to recommend the applicant for discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13- 5a for unfitness. As the specific reason, the commander noted the applicant's bitterness towards the military and resent for all authority. 10. The applicant consulted with legal counsel on 19 September 1973. He was advised of the basis for the contemplated discharge, the possible effects of an under than honorable conditions discharge, and the procedures and rights that were available to him. He elected not to submit a statement in his own behalf. 11. On 20 September 1973, the applicant was advised that if he were a drug experimenter, drug user, or drug addict, he could request amnesty and rehabilitation. He was advised that if he participated in the program he would not be subjected to punitive action, including discharge under other than honorable conditions (UOTHC), solely for drug abuse. The applicant waived this option for amnesty and rehabilitation and indicated that he did not wish to participate in the Drug Rehabilitation Program. 12. The applicant's chain of commander recommended approval of his separation from service unfitness with an undesirable discharge. 13. The applicant was reported as AWOL from on or about 4 October 1973 through 14 October 1973. 14. On 9 October 1973, the appropriate authority approved the applicant's discharge recommendation, waived the rehabilitative transfer requirement, and directed the issuance of an Undesirable Discharge Certificate. 15. On 15 October 1973, on temporary records and in absentia because he was AWOL, the applicant was discharged in the pay grade of E-1. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 13-5a, with a characterization of service of UOTHC (Separation Program Number 28B and Reentry Code 3/3B). He was credited with 2 years, 9 months, and 27 days of net active service with 4 periods of lost time totaling 63 days. 16. The VA originally denied the applicant's request for benefits on 14 April 1993 due to his receipt of an undesirable discharge. 17. The ABCMR denied the applicant's request for an upgrade of his character of service on four occasions with an additional occasion resulting in an administrative letter close for failure to submit new evidence. a. In three of the prior requests, the applicant also requested a change of his narrative reason to show the separation was due to medical reasons. b. The applicant has previously contended that the reason for his misconduct was that he was having marital problems with his wife and that he went AWOL several times to try to keep her from getting a divorce. The record shows he divorced his spouse on 2 July 1973. c. In his prior requests both his personal statement and letters of support indicate that the applicant had significant problems with alcohol and illegal drug use. 18. The applicant provides a VA rating decision, dated 21 June 2021, granting him partial relief. On a remand from the Board of Veterans Appeals, an administrative decision determined: a. The applicant was charged with violating Articles of the UCMJ by being drunk and disorderly; Article 128, assault on a Military Police Officer (2 specifications), and Article 95, resisting arrest. At the time of his discharge, he had been AWOL for four periods, totaling 64 days. b. A medical opinion, to determine the applicant's mental state at the time of discharge, was completed on 11 June 2021. The examiner determined that "it is at least as likely as not" that the applicant was "insane" at the time of the incidents affecting his discharge. c. On the issue of sanity, the physician stated all elements required to decide the issue of mental health state at the time of discharge were met, and all findings were favorable to decide the issue of the character of discharge from service as a bar to VA compensation benefits. It was determined that the applicant's discharge from the period of service from 15 October 1970 to 15 October 1973 was under honorable conditions for the purpose of eligibility for VA benefits. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his discharge to under honorable conditions (general) and a change of the narrative reason 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) ROP incorporates 5 previous considerations by the ABCMR between 26 April 1995 and January 2015. (2) As new evidence he provides a VA Decision Document that determined he was “insane” at the time of discharge. He states his discharge is unjust because his misconduct was caused by mental problems, and he was not properly evaluated. (3) He enlisted in the RA on 15 October 1970. (4) Summary Court-Martial dated 1 March 1973 shows he was found guilty of being drunk and disorderly in public, two specifications of assault, and resisting arrest on or about 30 December 1972. (5) He was reported as AWOL from on or about 2 May 1973 to 24 May 1973. (6) On 31 July 1973 he accepted NJP for AWOL from 1 June to 11 June 1973. (7) DA Form 3822-R Report of Mental Status Evaluation dated 13 September 1973 shows no abnormalities in behavior, orientation, mood, thinking process, thought content, or memory. He was deemed mentally capable to participate in proceedings. (8) On 19 September 1973 he was notified of intent to separate under AR 635-200 paragraph 13-5a for unfitness, with the specific reason being bitterness toward the military and resent(?) for all authority. (9) On 20 September 1973 he was advised if he were involved with drugs, he could request amnesty and rehabilitation and not be subject to punitive action to include discharge UOTHC solely for drug use. He waived this option. (10) He was again reported as AWOL from on/about 4-14 October 1973. (11) He was discharged in absentia (AWOL) on 15 October 1973 under AR 635- 200 paragraph 13-5a, UOTHC. (12) The ROP summarizes the decision-making process of prior ABCMR considerations. (13) A VA decision rendered in June 2021 included a medical opinion that it was “it is at least as likely as not” that the applicant was “insane” at the time of incidents. 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 “mental problems” associated with application and lack of proper evaluation at time of service. Rating decision letter dated 21 June 2021 was reviewed. Advisor’s note: Despite the elaboration in this decision letter, it is unclear what data specific to the applicant the opining physician utilized in determining the likelihood that the applicant was “insane” at the time of his offenses to include both the assaults toward police while intoxicated and his periods of AWOL. Insanity is generally recognized as a legal term that denotes, in essence, the inability to differentiate right from wrong and adhere to the right. Report of Mental Status Evaluation dated 13 September 1973 was conducted by an Army Medical Corps O-4 and was unremarkable as noted in the ROP. Report of Medical Examination (same date) was generally unremarkable; he acknowledged history of head injury but denied history of common mental health complaints to include problems sleeping, depression/excessive worry, loss of memory or amnesia (often associated with head injury), or nervous trouble of any sort. He was deemed qualified for separation. Personal data summary dated 20 September 1973 indicates average intelligence and the ability to determine wright from wrong. Memo of 20 September 1973 includes references to AWOL due to marital difficulties and “he has clearly demonstrated that he is not going to serve voluntarily.” Available service records and prior ABCMR documents were reviewed. He asserts various circumstances across his numerous applications. It appears he first references mental health concerns at the time of service (PTSD) in ROP dated 20 January 2015; documentation references diagnoses of PTSD and major depression rendered by a psychologist who saw veteran 7 times between 2008-2014. His application was denied, and conclusions referenced “no convincing evidence showing that he experienced any traumatic events while in the military that would have caused his PTSD.” 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. There is no evidence of any service- connected conditions. A VA decision letter was previously cited as noted above and in the ROP. However, his JLV record is void of clinical data and there are no computer flags indicating limited system response or incomplete record return. Multiple review efforts were made over time to ensure full access to records. A problem list which pulls data from available community records does not include any mental health conditions. 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 has asserted mental health conditions associated with his application. (2) Did the condition exist or experience occur during military service? Yes, per his assertion only. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts mental health conditions associated with the circumstances of his discharge, and his assertion alone is worthy of consideration by the Board. It is this advisor’s opinion that he has not established the presence of a mental health condition at the time of service that would fully mitigate the circumstances of his discharge. Even presumptive PTSD, referenced in other records, would not mitigate offenses associated with assault and resisting arrest. In terms of his request for medical basis of discharge, other than the VA decision letter which referenced his being “insane” at the time of service (the basis of determination of which is unclear), there is no evidence of an unfitting medical condition at the time of service/discharge. There is reference to alcohol use at the time of the arrest which led to assault of MP and resisting arrest charges, but alcohol intoxication would not mitigate this behavior nor is alcohol use disorder an unfitting condition per AR 40-501. He completed a mental status evaluation prior to separation by an appropriate medical provider and no defects were noted. In summary, the advisor does not find evidence of any mental health mitigation related to the circumstances of discharge, nor is there evidence that his separation via medical channels was indicated. 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 on 15 October 1973, under the provisions of AR 635-200, paragraph 13-5a, due to unfitness, with a characterization of service of UOTHC (Separation Program Number 28B and Reentry Code 3/3B). He was credited with 2 years, 9 months, and 27 days of net active service with 4 periods of lost time totaling 63 days. a. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The applicant has asserted mental health conditions associated with the circumstances of his discharge. The Board agreed that the applicant has not established the presence of a mental health condition at the time of service that would fully mitigate the circumstances of his discharge. Even presumptive PTSD, referenced in other records, would not mitigate offenses associated with assault and resisting arrest. 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. b. As far as the issue of a medical separation, other than the VA decision letter which referenced his being “insane” at the time of service (the basis of determination of which is unclear), there is no evidence of an unfitting medical condition at the time of service/discharge. The Board noted that there is reference to alcohol use at the time of the arrest which led to assault of MP and resisting arrest charges, but alcohol intoxication would not mitigate this behavior nor is alcohol use disorder an unfitting condition per AR 40-501. He completed a mental status evaluation prior to separation by an appropriate medical provider and no defects were noted. The Board did not find evidence of any mental health mitigation related to the circumstances of discharge, nor is there evidence that his separation via medical channels was indicated. 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 to amend the decision of the ABCMR set forth in Dockets Number * AC93-11075 on 26 April 1995 * AR20080002771 on 24 June 2008 * AR20080018405 on 24 March 2009 * AR20100028754 on 30 June 2011 * AR20140018581 on 20 January 2015 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 (USC), 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. The VA operates under the provisions of Title 38, USC, for the administration of Veterans Affairs and benefits. It provides at: a. Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. b. Title 38, Code of Federal Regulations (CFR) 3.12(a), states if the former service member did not die in service, then pension, compensation, or Dependency and Indemnity Compensation (DlC) is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable (38 U.S.C. 101(2)). c. Title 38, CFR 3.360(a) and (b), the health care and related benefits authorized by Chapter 17 of Title 38, USC, shall be provided to certain former service members with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval, or air service in line of duty. With certain exceptions such benefits shall be furnished for any disability incurred or aggravated during period of service terminated by a discharge under other than honorable conditions. Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in 38 CFR 3.12(c) applies. d. Title 38, CFR 3.12(d), benefits are not payable where the former service member was discharged or released for willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. 3. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may afford a Veteran benefit based on its own regulations. 4. Army Regulation 40-501, paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, they must be unable to perform the duties of their office, grade, rank, or rating. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical or mental condition to reasonably perform the duties of their office, grade, rank, or rating. Separation or retirement by reason of disability requires processing through the PDES. Paragraph 3-1 provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. 6. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 provides that a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance when in the commander's judgment; the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; the seriousness of the circumstances is such that the Soldier's retention will have an adverse impact on military discipline, good order, and morale; the Soldier will likely be a disruptive influence in duty assignments; the circumstances forming the basis for initiation of separation proceedings will likely continue or recur; the Soldier's ability to perform duties effectively is unlikely; and/or the Soldier's potential for advancement or leadership is unlikely. d. Paragraph 13-5a(1) of the regulation provided, in pertinent part, for the separation of enlisted personnel for unfitness. Individuals separated by reason of unfitness were normally furnished with an Undesirable Discharge Certificate. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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.) AR20220007273 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1