IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220009721 APPLICANT REQUESTS: The applicant, the nephew of a former service member (FSM), requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA), confirmation of Fiduciary appointment, dated 16 March 2021 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, the FSM served his country proudly and has struggled with mental issues since his separation. He also believes these mental issues contributed to the FSM's general discharge. He contends the FSM is incompetent and was hurt when he learned of his less than honorable discharge. He requests consideration of the FSM's mental disability as a contributing factor to his general discharge. The FSM is a proud Veteran, granting him an upgrade would make him even prouder. 3. The FSM's service record shows: a. He completed three years of high school before enlisting in the Regular Army on 18 January 1979, for a 4-year service obligation. Upon completion of basic training, he remained at Fort Jackson, SC until being academically dropped from the military occupational specialty (MOS) 75D (Personnel Records Specialist) course, on 8 May 1979. He was reassigned to Fort Sill, OK where he completed training in MOS 13B (Cannon Crewman) and was assigned to Germany on 31 July 1979. He was promoted to Specialist Four/E-4 on 1 October 1980. b. The FSM accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * 2 April 1982, for failing to go to his appointed place of duty at the time prescribed, on or about 1 April 1982; his punishment included reduction to Private First Class/E-3, 14 days extra duty, and restriction * 18 June 1982 (corrected copy), for breaking his previously placed restriction, on or about 10 April 1982; his punishment included reduction to Private/E-2 (suspended), 14 days extra duty, and restriction c. On 27 September 1982, the FSM's commander completed a report for psychiatric examination form wherein he noted the following: * six months previously the FSM began to show up late for work and displayed a negative attitude toward his duties * he had been counseled and received NJP on four occasions [all not available for review] * approximately one month prior he was medically determined to be an alcoholic but was not referred to Alcohol and Drug Abuse Prevention and Control Program as chapter proceedings had already been initiated * he had a continuous problem getting along with peers and supervisors * he had a rehabilitative transfer in August 1979 and changed sections twice during 1982 due to problems with supervisors * all attempts at rehabilitation had not improved his performance or attitude, and he displayed no potential for retention d. On 28 September 1982, the FSM's commander notified the FSM of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-4a, for unsuitability. He acknowledged receipt on the same day. e. On 27 September 1982, the FSM consulted with counsel and was advised of the basis for the contemplated actions to separate him, of the rights available to him, and the effect of any action taken to waive those rights. His elections are not clear as the copy has faded but it is presumed that all requirements of law and regulation were met, and the rights of the FSM were fully protected throughout the separation process. His signature is present and clear. f. The FSM accepted NJP, under the provisions of Article 15 of the UCMJ, on 28 September 1982, for breaking his previously placed restriction, on or about 26 September 1982. His punishment included reduction to E-2, 14 days extra duty, and restriction. g. On 28 September 1982, the FSM's commander formally recommended that he be separated from service before the expiration of his term of service for unsuitability because of inaptitude. He recommended a waiver of further rehabilitative measures and noted that a medical separation examination was completed. h. On 6 October 1982, the FSM underwent a mental status examination, the DA Form 3822-R (Report of Mental Status Evaluation) shows he was mentally responsible, could distinguish right from wrong, was able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met retention standards. i. On 1 November 1982, the separation authority approved the recommended action under the provisions of Army Regulation 635-200, by reason of inaptitude. He directed the issuance of a DD Form 257A (General Discharge Certificate). j. On 15 November 1982, the FSM was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 13-4a, with Separation Program Designator Code "JMD" (inaptitude), his narrative reason for separation was unsuitability - inaptitude. He was credited with 3 years and 28 days of net active service, with a service characterization of under honorable conditions. He was awarded or authorized the Army Service Ribbon, Overseas Ribbon, and two marksmanship qualification badges. 4. The applicant provides a VA letter showing he was appointed as the FSM's fiduciary. 5. In reaching its determination, the Board can consider the applicant’s petition and the service record in accordance with the published equity, injustice, or clemency determination guidance. 6. Army Regulation 635-200, which superseded Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. It requires that every service member discharged for unsuitability due to personality disorder be given an honorable discharge unless convicted by a general court-martial or more than one special court-martial. 7. Based on the application referring to the FSM's mental health issues, the Army Review Board Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section below. This agency does not provide copies of ARBA Medical Staff reviews to applicant's and/or their legal representatives prior to adjudication of the case. 8. MEDICAL REVIEW: a. The applicant, the nephew of a former service member (FSM), requests the FSM’s under honorable conditions (general) discharge be upgraded to an honorable discharge. He contends the FSM is incompetent, and he is requesting this upgrade for him. He asserts the FSM’s mental health conditions during his active service contributed to 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 FSM enlisted into the Regular Army on 18 January 1979; 2) The FSM accepted nonjudicial punishment (NJP) on 2 April 1982 for failing to be at his appointed place of duty on time and on 18 June 1982 for breaking restriction; 3) On 27 September 1982, the FSM's commander completed a report for psychiatric examination. He stated the FSM: A) had a history of showing up late to work and had a negative attitude; B) he had received NJP on four occasions; C) one month prior was determined to be an alcoholic but not referred to substance abuse counseling; D) had a continuous problem getting along with others; E) had after multiple attempts at a rehabilitative transfer not seen any improvement with FSM’ performance; 4) On 15 November 1982, the FSM was discharged, Chapter 13-4a, with Separation Program Designator Code "JMD" (inaptitude). His narrative reason for separation was unsuitability – inaptitude with a service characterization of under honorable conditions. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military available service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant contends the FSM had mental health conditions which contributed to his misconduct. While on active service, there is evidence the FSM was experiencing alcoholism as reported by his commander, but he was not sent to substance abuse counseling. In addition, the FSM was seen for a Mental Status Exam on 6 October 1982 as part of his discharge proceedings. He was not diagnosed with a mental health condition, and he was cleared from a psychiatric perspective for administrative proceedings. A review of JLV provided evidence the FSM has been diagnosed with alcohol abuse, depression, and anxiety disorder since April 2016. He also receives 70% service-connect disability for depression since 21 August 2020. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the FSM had condition or experience that mitigated his misconduct. 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 contends the FSM had mental health conditions that contributed to his misconduct. There is also evidence that applicant was reported to be experiencing alcoholism while on active service (2) Did the condition exist or experience occur during military service? Yes, the applicant contends the mental health conditions occurred while the FSM was on active duty. In addition, there is evidence while the applicant was on active service, he was experiencing alcoholism, and he receives service-connected disability for depression. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the FSM was experiencing symptoms likely associated with depression while on active service. The FSM had a history of interpersonal problems and difficulty showing up to duty on time. In addition, the applicant’s alcohol abuse could be an additional attempt to self-medicate or to avoid a negative emotional state. Avoidant behavior and interpersonal problems are often a natural sequel to depression. 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 due to unsuitability (inaptitude). He was credited with 3 years and 28 days of net active service, with a service characterization of general, under honorable conditions. 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 that the FSM was experiencing symptoms likely associated with depression while on active service. The FSM had a history of interpersonal problems and difficulty showing up to duty on time, and his alcohol abuse could be an additional attempt to self-medicate or to avoid a negative emotional state. The Board determined there is sufficient evidence of in-service mitigating factors to overcome the misconduct. As a result, the Board determined an upgrade to a fully honorable 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 that the evidence presented was 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 the FSM a DD Form 214 for the period ending 15 November 1982 showing: * Character of Service: Honorable * 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, 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 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Paragraph 3-7a provides 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. 4. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: inaptitude; character and behavior disorders; apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); alcoholism; or enuresis. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition (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 FSM'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) AR20220009721 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1