IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230000194 APPLICANT REQUESTS: an upgrade of his characterization of service from under conditions other than honorable to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 1 September 2022 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 20 November 1972 * 1 page from medical record (Hospital), 25 March 1975 * letter with Medicaid card (Medicaid Program), undated 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 was unable to coexist with other Army Soldiers. He went absent without leave (AWOL) because he could not perform his duties and was constantly harassed by his chain of command. He did not like the conditions and could not tolerate the Army environment. On 23 January 1975, he was diagnosed with chronic, paranoid schizophrenia by the hospital. His physical and mental conditions are rapidly declining, and he needs support from the Department of Veteran Affairs (VA). The applicant marked “Other Mental Health” on his DD Form 149. 3. The applicant enlisted in the regular Army on 15 September 1967. He held military occupational specialty 13A, Field Artillery Basic. 4. On 6 January 1968, while in training at Fort Dix, NJ, the applicant accepted company grade non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 2 to 5 January 1968. His punishment included reduction to private (PV1)/E-1. 5. He served in Korea from 12 February 1968 to 5 February 1969. While in Korea, he accepted NJP under Article 15 on/for: a. On 30 April 1968, he accepted company grade NJP for being AWOL from 29 to 30 April 1968. His punishment included reduction to PV1/E-1 and forfeiture of $50.00 pay per month for two months. b. On 4 September 1968, he accepted field grade NJP for, having been duly restricted to the limits of his unit, did break restriction by absenting himself from his unit on or about 1 September 1968. His punishment consisted of 21 days restriction with extra duties. c. On 23 December 1968, he accepted company grade NJP for willfully disobeying a lawful order, to be in quarters during the hours of curfew on or about 22 December 1968. His punishment consisted of reduction to private (PV2)/E-2 and 14 days restriction. The reduction to PV2/E-2 was suspended until 22 January 1969. 6. On or about 17 Marc 1969, he was reassigned to the Service Battery, 6th Battalion, 82nd Field Artillery at Fort Bragg, NC. 7. The applicant’s record contains DD Form 553 (Absentee Wanted by the Armed Forces), which shows he was reported AWOL on 8 July 1969 and was Dropped from Rolls as a deserter on 16 August 1969. 8. Special Order Number 264, published by Headquarters (HQ), XVIII Airborne Corps and Fort Bragg, NC, dated 27 November 1970, shows the applicant was returned to military control and placed in confinement on 25 November 1970. 9. Special Court Martial Order Number 25, published by HQ, Fort Bragg, NC, dated 2 March 1971, shows the applicant was convicted of the following offenses: a. Charge 1, Article 86 (AWOL): two specifications of AWOL from on or about 8 July 1969 to on or about 15 August 1969 and from on or about 16 August 1969 to on or about 20 November 1970. b. The sentence was adjudged on 28 January 1971. His punishment was to be discharged from the service with a bad conduct discharge, forfeiture of $88.00 per month for four months, to be confined at hard labor for four months, and reduction to the grade/rank of PV1/E-1. c. On 2 March 1971, the sentence was approved. The applicant was assigned to the Correctional Holding Detachment at Fort Bragg. The record of trial was forwarded to the appellate authority for appellate review. 10. Special Court Martial Order Number 37, published by HQ, Fort Bragg, NC, dated 16 March 1971 shows the unexecuted portion of the applicants sentence of confinement at hard labor for four months was remitted, effective 26 March 1971. 11. On 16 March 1971, the applicant underwent a physical and psychiatric examination prior to submission of a recommendation that he be administratively separated from service. The doctor found the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right and had the mental capacity to understand and participate in board proceedings. 12. On 22 March 1971, the applicant accepted field grade NJP under the provisions of Article 15, UCMJ, for being found drinking and intoxicated while on duty on or about 20 March 1971 13. Special Court Martial Order Number 100, published by HQ, Fort Bragg, NC, dated 18 June 1971 shows the applicant’s sentence of bad conduct discharge, forfeiture of $88.00 pay per month for four months, confinement at hard labor for four months, and reduction to the grade of PV1/E-1, adjudged on 28 January 1971, has been affirmed pursuant to Article 66. The provisions of Article 71c having been complied with, the sentence will be duly executed. That portion of the sentence pertaining to confinement has been served. 14. The applicant's DD Form 214 shows he was discharged on 20 November 1972, under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), in the rank/grade of PV1/E-1. His service was characterized as under conditions other than honorable (Separation Code 292) and he received a Bad Conduct Discharge Certificate. He completed 3 years, 4 months and 29 days of net active service, and he had 636 days of lost time (29 to 30 April 1968, 8 July to 24 September 1970, 15 September to 23 November 1970, and 25 November 1970 to 26 Marc 1971). Also, his DD Form 214 list the following awards: * National Defense Service Medal * Armed Forces Expeditionary Medal 15. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 20 November 1972. The Korea Defense Service Medal (KDSM) will be added to his DD Form 214 as administrative correction and will not be considered by the Board. 16. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 17. He provides: a. 1 page from his medical record from the Hospital, dated 25 March 1975, shows: (1) The applicant was serving a Confine and Treat Order issued 23 January 1975 after being picked up by the police for walking on the wrong side of the road. A doctor examined the applicant while in jail and found him to be poorly oriented with the time and place, confused, and disjointed with ideas and paranoid ideation. (2) At the time of admission, the applicant was anxious during the interview and paced back and forth. Delusional content was not apparent and suicidal or homicidal potential were not indicated but potential for impulsive outburst seemed high. (3) After stabilization while on antipsychotic medication, the applicant’s condition became more stable, allowing improved overall functioning. His final diagnosis was chronic schizophrenia, paranoid type. The applicant was released on 25 March 1975. b. A letter from the Medicaid Program, shows he was provided with Medicaid program card. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. On his application, he noted other mental health conditions was a mitigating factor in the circumstances that resulted in his separation which mitigated 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 15 September 1967; 2) The applicant went AWOL multiple times between April 1968-November 1970; 3) Court martial orders, dated 2 March 1971, shows the applicant was convicted of two specifications of AWOL. He was found guilty and sentenced to be discharged from the service with a bad conduct discharge, forfeiture of pay, reduction of rank, and confinement at hard labor for four months; 4) The applicant was discharged on 20 November 1972. His service was characterized as under conditions other than honorable (Separation Code 292), and he received a Bad Conduct Discharge Certificate. 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) and civilian medical records were also examined. d. The applicant asserts he was experiencing difficulty with his military service due to his mental health condition of schizophrenia, which mitigates his misconduct. On 16 March 1972, the applicant underwent a physical and psychiatric examination prior to submission of a recommendation that he be administratively separated from service. The applicant was found mentally responsible, able to distinguish right from wrong and adhere to the right and had the mental capacity to understand and participate in board proceedings. Also, he was determined to meet the psychiatric retention standards. A review of JLV provided insufficient evidence the applicant has been diagnosed a mental health disorder, and he does not receive service-connected disability. The applicant did provide civilian documentation from Hospital dated 25 March 1975. At that time, the applicant was diagnosed with chronic schizophrenia. However, there was insufficient information provided on the onset of the applicant’s symptoms beyond the event (Confine and Treat Order issued 23 January 1975) which resulted in his inpatient psychiatric treatment. He also provided additional evidence from the Medicaid Program, which shows he was provided with Medicaid program card. 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 provided evidence he was diagnosed with schizophrenia in 1975 after he was discharged in 1972. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he experienced a mental health condition while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. He was diagnosed with schizophrenia less than three years after his discharge. However, while he was on active service, there was evidence the applicant was found to meet psychiatric retention standards, and on the civilian documentation he provided, there was insufficient evidence to suggest his symptoms of schizophrenia began while he was on active service. The applicant did go AWOL, which can be a sequalae to schizophrenia, but this is not sufficient to establish a history of the applicant meeting criteria for this condition while on active service. However, the applicant contends he was experiencing a mental health condition and experience that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board recognized there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition while on active service. He was diagnosed with schizophrenia less than three years after his discharge. 2. Liberal consideration was given to the applicant who did go AWOL, which the Board understands can be a sequalae to schizophrenia, but this is not sufficient to establish a history of the applicant meeting criteria for this condition while on active service. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. The Board agreed there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 20 November 1972. As a result, amend his DD Form 214 by adding: Korea Defense Service Medal. 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. Army Regulation 635-200 (Personnel Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 4. 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/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000194 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1