IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220008908 APPLICANT REQUESTS: Reconsideration of his previous request 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 Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC98-11519 and AR20140020044 on 28 October 1998 and 25 February 2015, respectively. 2. As a new argument, the applicant states he was disenfranchised for no reason. No human being should have been treated the way he was treated. He was chaptered out and received no payment for his service-connected disability. 3. On his DD Form 293, 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. By memorandums dated 30 December 2022 and 30 January 2023, the applicant was asked to provide the listed documents that he noted as evidence on his application. He was given a 30-day suspense; however, he failed to respond. 5. The applicant enlisted in the Regular Army on 1 June 1971 for a 3-year term of service. He was awarded military occupational specialty 95B (Military Police). 6. The applicant served in Vietnam from 10 November 1971 through 27 June 1972. 7. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 26 September 1972, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order, on or about 13 September 1972. His punishment included reduction to E-2. 8. Before a special court-martial at Aberdeen Proving Ground, MD on 3 March 1973, the applicant was found guilty of: wrongful possession of 2.00 milliliters of amphetamine on or about 30 September 1972; stealing a purse and $281,00 U.S. currency on or about 1 October 1972; wrongful appropriation of a set of license plates on or about 18 November 1972; being absent without leave (AWOL) from on or about 2 October to14 October 1972; and being disrespectful in language toward his superior non-commissioned officer on or about 22 November 1972. 9. The court sentenced the applicant to forfeiture of $154.00 pay per month for three months, confinement at hard labor for three months, reduction to the grade of E-1, and to be separated from service with a bad conduct discharge (BCD). The sentence was approved on 14 June 1973. 10. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ on 8 April 1974, for being AWOL from on or about 25 March 1974 to on or about 27 March 1974. His punishment included forfeiture of pay and extra duty for 14 days. 11. The U.S. Army Court of Criminal Appeals, on 29 July 1974, dismissed the charge for failing to obey an order on 24 November 1972. The remaining findings and sentence were approved and affirmed. 12. Special Court-Martial Order Number 7, issued by Headquarters Fort Stewart, GA on 12 September 1974, noted the applicant's sentence had finally been affirmed and ordered the BCD duly executed. 13. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 10 October 1974, in the pay grade E-1, as a result of conviction by court-martial. He was credited with 2 years, 2 months, and 20 days of net active service this period, he had 200 days of lost time. His service was characterized as UOTHC and. he was awarded or authorized the: * National Defense Service Medal * Republic of Vietnam Campaign Ribbon with 60 Device * Vietnam Service Medal * Overseas Bar (one) * Marksman Qualification Badge (Rifle and Hand Grenade) 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his characterization of service. On 6 December 1977, the ADRB determined he failed to submit relevant evidence to demonstrate the existence of probable error or injustice and denied his request for relief. 15. The applicant petitioned the ABCMR for an upgrade of his characterization of service. On 28 October 1998, his request for relief was denied. 16. On 24 February 2015, the ABCMR again considered the applicant's request for upgrade. After careful consideration it was determined there were insufficient mitigating factors to warrant an upgrade. His request was denied. 17. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed 18. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 19. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his previous applications to upgrade the characterization of his service from Under Other than Honorable Conditions (UOTHC). The applicant contends that PTSD mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted into the RA on 1 June 1971. * The applicant served in Vietnam 10 November 1971 through 27 June 1972. * Applicant accepted nonjudicial punishment (NJP) under Article 15 on 26 September 1972, for failing to report. On 3 March 1973 a special court martial found the applicant guilty of wrongful possession of 2.00 milliliters of amphetamine, stealing a purse and currency, wrongful appropriation of a set of license plates, AWOL, and being disrespectful in language toward an NCO. On 8 April 1974 the applicant accepted NJP for being AWOL 25 to 27 March 1974. He was sentenced to forfeiture of pay for three months, confinement at hard labor for three months, reduction to E-1, and he was to be separated from the service. US Army Court of Criminal Appeals 29 July 1974 dismissed the charge of failing to obey an order on 25 November 1972. The remaining findings and sentence were approved. On 12 September 1974 a Special Court Martial affirmed and ordered the sentence. * Applicant was discharged 10 October 1974 as a result of a Court Martial Conviction. His characterization of service was UOTHC. * Applicant has made three attempts to amend his records. See ROP and supporting documents for further information. c. Review of Available Records Including Medical: d. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, his ABCMR Record of Proceedings (ROP), previous ABCMR submission/ruling information, DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV) and AHLTA. Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant asserts that his misconduct was mitigated by PTSD. There is insufficient evidence provided to support that the applicant was ever seen or treated for PTSD, or any other mental health condition, while in the service (records were very limited; treatment was limited; PTSD was not yet a diagnosis). Per a review of the applicant’s electronic health record (EHR), the veteran has been diagnosed with chronic PTSD, depression, anxiety, polysubstance use, and ADHD. He began treatment with the VA in 2009 and has intermittently engaged in care (consistently 2009 to 2010; reengaged in 2017 through early 2022). Thus far, none of these conditions have been service connected. That said, his account of traumatic experiences and symptoms has been consistent throughout his medical record. He has repeatedly met criteria for PTSD and has consistently related the symptoms back to his experiences in Vietnam. Also, it does not appear that he has ever participated in a Compensation and Pension evaluation for mental health or PTSD. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. However, he contends his misconduct was related to PTSD secondary to significant trauma from Vietnam and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 he experienced PTSD. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts that he experienced PTSD while in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial: The applicant asserts mitigation due to PTSD at the time of service. This assertion alone is worthy of consideration by the Board. The applicant has been diagnosed with PTSD, as well as numerous other psychiatric conditions, however he is not service connected for PTSD, nor any other medical or psychiatric condition by the VA. There is currently insufficient evidence to support that he was diagnosed with nor experienced PTSD during his time of service. However, given the time frame of his service, this is not uncommon. Substance use, failure to report, and AWOL are avoidance behaviors, and disrespect toward leadership is a symptom of increased reactivity and arousal, all of which can be associated with the natural history and sequelae of PTSD. There is a nexus between his symptoms/experiences and some of the misconduct that led to his discharge. However, there is no nexus between PTSD and larceny and/or misappropriation of items. This misconduct is not part of the natural history or sequelae of his asserted mental health condition. PTSD does not affect one’s ability to distinguish right from wrong and act in accordance with the right. And finally, possession and use of substances, failure to report, disrespect toward leadership, and going AWOL are not sufficient evidence to establish PTSD or other mental health conditions though do indicate a marked change in behavior given previous reports of his clean service record prior to Vietnam. BOARD DISCUSSION: 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 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. a. The applicant trial by a court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical official’s 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. 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 AC98- 11519 and AR20140020044 on 28 October 1998 and 25 February 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, USC, 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, USC, 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that 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 3-7b provided that 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 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 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) AR20220008908 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1