IN THE CASE OF: BOARD DATE: 14 April 2023 DOCKET NUMBER: AR20220009661 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Report of Transfer or Discharge), ending in 1971 and 1974 * 1978 News Article * Department of Veterans Affairs (VA) documents (four) * Letters of Support (three) 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 had prior Army National Guard (ARNG) and Active Army service prior to his enlistment on 14 June 1977. He suffered a life changing event on 4 February 1978 that made him start to think differently. Recently he has decided to get assistance with his mental health issues through the VA. He discovered he has a form of post-traumatic stress disorder (PTSD) as a result of the 4 February 1978 incident that caused him to be absent without leave (AWOL). 3. On the applicant's application, he indicates PTSD, as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. With prior ARNG, U.S. Army Reserve, and Regular Army service, the applicant re- enlisted in the Regular Army on 14 June 1977, for 3 years in the grade of E-3. 5. The applicant was reported as absent without leave (AWOL) on 16 February 1978 and was dropped from the unit rolls on 17 March 1978. 6. Court-martial charges were preferred against the applicant on 19 April 1978 for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 16 February 1978 until on or about 16 April 1978, when he surrendered to military authorities. 7. The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He stated that under no circumstances did he desire further rehabilitation as he had no desire to perform further military service and there is no evidence he submitted any statements on his own behalf. 8. In an undated statement associated with his request for discharge, the applicant indicated he had been advised that the Government had not received the necessary documentation and/or records with which to obtain a conviction at court-martial. He voluntarily admitted to being AWOL from 16 February 1978 until 16 April 1978 for the purpose of being out processed. 9. The applicant's immediate commander recommended approval of his request for discharge and noted there did not appear to be any reasonable ground to believe the applicant was mentally defective. He further recommended the applicant's service be characterized as UOTHC. 10. The separation authority approved the applicant's request for discharge on 26 May 1978, under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 794A (UOTHC Discharge Certificate). 11. The applicant was discharged on 12 July 1978 in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 10, for conduct triable by court martial and his service was characterized as UOTHC. He was credited with 10 months and 29 days of net active service this period with 1 year, 11 months, and 4 days of prior active service (Separation Code JFS and Reentry Code . He had 59 days of lost time. His awards and decorations are shown as the National Defense Service Medal, Air Assault Badge, Expert Qualification Badge with the M-67 90 mm Recoilless rifle, and M-16 rifle. 12. The applicant provides: a. An 8 February 1978 newspaper article related to the shooting of and the threatening of witnesses by the gunman. In one of the letters of support, it is noted that the applicant was one of the witnesses threatened during this incident. b. Copies of four VA documents: * a 6 July 1979 administrative determination denying entitlement to VA benefits * a 12 July 1979 denial of entitlement to benefits letter, stating that he was not entitled to VA benefits due to the nature of his discharge except for medical care for any disability incurred in or aggravated during active service * a VA PTSD Questionnaire, dated 7 March 2022 * a 26 April 2022 decisional document granting him service connection for PTSD for treatment purposes only c. Three letters of support that describe the applicant as always having been a model citizen, a fantastic father and grandfather, who exhibits enthusiasm and dependability in all of his endeavors, having outstanding people and work skills, and being gainfully employed for a number of years. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting his under other than honorable conditions (UOTHC) discharge be upgraded. He contends he had a mental health condition that mitigated his misconduct, 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) With prior ARNG, U.S. Army Reserve, and Regular Army service, the applicant re-enlisted in the Regular Army on 14 June 1977; 2) The applicant was reported as AWOL on 16 February-16 April 1978; 3) The applicant was discharged on 12 July 1978, Chapter 10, for conduct triable by court martial, and 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 records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant asserts he was experiencing PTSD as a result of witnessing a murder of a friend and fellow military member by another friend and military member on 4 February 1978. The applicant denied reporting any mental health symptoms while on active service, and there is no evidence of him receiving any behavioral health treatment or a diagnosis while on active service. A review of JLV provided evidence consistent with the applicant report that he more recently began to seek assistance at the VA for mental health symptoms. The applicant has been diagnosed with PTSD, depression, and alcohol dependence by the VA. As of 26 April 2022, the applicant has been found eligible for treatment for service-connected PTSD. He does receive service- connected disability for physical concerns related to his earlier terms of enlistment. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient 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 stated he experienced a traumatic event and resultant PTSD while on active service. He was also awarded service-connected treatment at the VA for PTSD related to the potentially traumatic event the applicant reported experiencing. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant was exposed to a potentially traumatic event while on active service. The applicant had no history of any misconduct except for going AWOL before this event. Avoidant behaviors, such as AWOL, are often a natural sequalae to PTSD. 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 charged with commission of an offense (AWOL) punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and result in an under other than honorable conditions character of service. 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 advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 12 July 1978 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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, 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 4. 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. 5. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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.) AR20220009661 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1