IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20220007685 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. Additionally, he requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 9 May 2022 * Self-authored Statement * Character Reference Letter * Veterans Affairs (VA) Character of Service Letter * VA Summary of Benefits Letter 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 received his UOTHC discharge, he in fact was suffering from Post- Traumatic Stress Disorder (PTSD) as the result of an incident that occurred in Germany. It was not until this year after an incident, that resulted from him disassociating that he sought treatment for PTSD. He wandered far from home on foot from to. He found his way to a VA medical clinic in. This incident was the first time that he was seen by a counselor. He finally had a name for all the symptoms that he had struggled with for 40 years. b. There was a training accident with the howitzer. There was misfire in the chamber and a backblast. The whole chamber exploded and everyone within the howitzer died. Five of his friends were killed. He was assigned to the recon operation to retrieve that tank from the training site. As he climbed down into the turret, he could smell burnt flesh and hair. He felt sick and couldn't get his bearings. He went to the troop medical clinic after, he couldn't seem to get over the guilt and fear. They told him to just go back to work. c. He tried and he couldn't make himself just get over it. He was not the same Soldier that he was before this happened. He became irritable and detached. He had twitches and couldn't stop moving. The anxiety was paralyzing. The doctor wouldn't write down what happened. He just kept telling him to forget about it. He never could and he never received treatment. His service suffered, he was court martialed and discharged. He didn't fight back because he felt ashamed and had so much guilt over what happened. He didn't know what else to do. If this happened today, he would have been treated for PTSD and could have returned to duty. 3. The applicant enlisted in the Regular Army on 11 July 1973, for a period of 3 years. Upon completion of training, he was awarded military occupational specialty 63C (Track Vehicle Mechanic). 4. The applicant received informal adverse counseling on the following dates: * 12 May 1974; for marital problems * 20 May 1974; for being absent from formation, poor performance and attitude * 22 May 1974; for being absent from formation * 23 May 1974; for being absent from quarterly services * 26 May 1974; for being absent from the billets and work formation 5. The applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 June 1974, for being absent from his appointed place of duty, on or about 23 May 1974 and on or about 24 May 1974. His punishment included reduction to private/E-2 (suspended) and 14 days extra duty. 6. The applicant received adverse counseling on or about: * 4 June 1974, for poor performance and conduct and being absent without leave (AWOL) * 7 June 1974, for being disrespectful to a noncommissioned officer (NCO) and being late for extra duty 7. On 11 June 1974, the applicant underwent a psychiatric evaluation. The examination revealed an immature personality, and that he would not benefit by punitive measures or by short-term psychotherapy. He was not motivated for continued military service. The examining psychiatrist recommended the applicant's discharge when command deemed it appropriate. 8. The applicant accepted NJP under Article 15 of the UCMJ on 13 June 1974, for failing to go at the time prescribed to his appointed place of duty, on or about 5 June 1974 and on or about 6 June 1974. His punishment included reduction to private/E-1, seven days extra duty, and forfeiture of $25. 9. The applicant received adverse counseling on or about: * 20 June 1974, for being AWOL on 18 June 1974 * 10 July 1974, for being AWOL on 9 July 1974 * 15 August 1974, advised on how to talk to NCOs and use of his chain of command * 20 August 1974, on job performance, uniform, and haircuts 10. Before a summary court-martial on 16 August 1974, at Fulda, Germany, the applicant was found guilty of AWOL from on or about 9 July 1974 to on or about 10 July 1974. The court sentenced him to forfeiture of $100.00, 30 days restriction, and 30 days extra duty. The sentence was approved on 16 August 1974; however, 15 days of restriction and 15 days of extra duty were directed. 11. On 20 August 1974, the applicant's commander notified the applicant that he intended to initiate elimination proceedings to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(4), by reason of unfitness for an established pattern for shirking. His commander noted, he had become unwilling to perform and be present for duty. 12. The applicant consulted with legal counsel on 27 August 1974 and was advised of the basis for the contemplated separation actions and its effects; the rights available to him; and the effects of a waiver of his rights. He waived consideration of his case by a board of officers. He elected not to make a statement in his own behalf. He further understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. 13. On 3 September 1974, the applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, paragraph 13-5a(4). 14. By legal review, the applicant’s discharge action was found to be legally sufficient for further processing. 15. On 23 September 1974, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 16. The applicant was discharged on 7 October 1974. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of AR 635-200, Chapter 13, by reason of unfitness. His service was characterized as UOTHC He completed 1 year, 2 months, and 25 days of net active service this period with 2 days of lost time. He was awarded or authorized the National Defense Service Medal. 17. The applicant provides a character reference letter that attests to his devotion to his family, work ethic, and his relationship with his children. Additionally, he provides a VA statement of service letter and a summary of benefits letter. 18. 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. 19. 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. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD that mitigates his misconduct. 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 in the Regular Army on 11 July 1973; 2) The applicant accepted non- judicial punishment (NJP) multiple times in May and June 1974 for being absent from his place of duty and not being on time. He also received multiple negative counselings for his job performance, being AWOL, and for his conduct toward NCOs; 3) Before a summary court-martial on 16 August 1974, the applicant was found guilty of being AWOL from 9-10 July 1974; 4) The applicant was discharged on 7 October 1974, Chapter 13, by reason of unfitness. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy civilian treatment records were provided for review. d. The applicant asserts he was experiencing PTSD as a result of his exposure to a training accident that occurred while he was on active service. The applicant did not provide a date of the event, but he did provide details surrounding the event, which involved the death of other Soldiers in his unit. On 11 June 1974, the applicant underwent a military psychiatric evaluation. The applicant was diagnosed with an immature personality, and he recommended for administrative discharge. The applicant did not provide any post active service medical documentation. However, there was evidence in JLV that the applicant was seen by the VA in Memphis, TN on 22 September 2021 in the Emergency Department. The applicant was reporting symptoms of PTSD related to event he reported in his application to the ABCMR. The applicant was not formally diagnosed with PTSD, because he was not eligible for services due to the nature of his discharge. However, they did record his self-reported symptoms of PTSD and encouraged him to engage in future treatment. The applicant does not receive service-connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports his symptoms of PTSD occurred while on active service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence beyond self-report that the applicant was experiencing a mental health condition while on active service. The applicant has a lengthy history of misconduct during his short term of military service, and there is no date of the reported training accident to determine which specific events of misconduct could be attributed to PTSD. PTSD can be associated with increased erratic and avoidant behavior. There could be is a nexus between PTSD and his failures to follow orders, report to formation, and going AWOL. The presence of these types of misconduct, however, is not sufficient to establish a history of PTSD during active service. Yet, the applicant contends he was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. The Board determined 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. 2. 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 due to unfitness. The Board reviewed and concurred with the medical advisor’s finding that there is insufficient evidence beyond self-reporting that the applicant was experiencing a mental health condition while on active service. The applicant has a lengthy history of misconduct during his short term of military service, and there is no date of the reported training accident to determine which specific events of misconduct could be attributed to PTSD. 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: 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 three 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 three-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. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 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. Paragraph 13-5a(4), as then in effect, provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern for shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 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) AR20220007685 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1