IN THE CASE OF:  
 
  BOARD DATE: 27 July 2023 
 
  DOCKET NUMBER: AR20230000271 
 
 
APPLICANT REQUESTS: in effect, reconsideration of his previous requests to upgrade his under other than honorable conditions discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Birth Certificate 

• DD Form 481-3 (Clinical Record Coversheet) 

• DA Form 8-117 (Immunization Register and Other Medical Data) 

• Standard Form (SF) 603 (Health Record – Dental) 

• SF 88 (Report of Medical Examination) (second page only) 

• DA Form 87 (Certificate of Training) 

• Two National Archives (NA) Forms 13017 (Reply to Medical Records/X-Ray Requests) 

• Applicant's separation packet 

• Two Certificates of Award 

• Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of Character), dated 21 May 1956 

• Memorandum Decision 

• Extract from U.S. Court of Appeals for Veterans Claims decision 

• Two college diplomas 

• Two General Educational Development Certificates 

• Two Certificates of Award 

• Two Certificates of Election 

• Two Memoranda for Record 

• Three Certificates of Recognition 

• Two Certificates of Appreciation 

• Two Certificates of Program/Training Completion 

• Three letters of support 

• DD Form 256A (Honorable Discharge Certificate) 

• National Guard Bureau (NGB) Form 55 (Honorable Discharge Certificate) 


 
 
FACTS: 
 
1.  Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers: 
 
• AC97-05011, on 16 July 1997 

• AR1999015452, on 2 December 1999 

• AR20120011044, on 25 July 2012 

• AR2020000271, on 26 October 2021 


 
2.  The applicant states, in effect, he received an undesirable discharge per Army Regulation (AR) 635-208 (Personnel Separations – Discharge – Unfitness), and his command tried him by court-martial twice for the same 6 days of absence without leave (AWOL).  
 
 a.  The applicant's command based his separation on unfitness due to an EPTS (existed prior to service) condition: antisocial personality. The court-martial convictions violated Article 44 (Former Jeopardy) of the Uniform Code of Military Justice (UCMJ).  
 
 b.  The applicant argues when he entered active duty in March 1961, it was under a full presumption of soundness, with the acknowledgement that he had a pre-existing condition (i.e., passive-aggressive personality disorder). The applicant maintains he suffered "acoustical trauma from firing 90 mm cannons" while serving in an armored division at Fort Polk, LA; the resulting trauma caused personality changes and a disease of the nervous system and ultimately contributed to his adverse separation. 
 
 c.  The applicant continues his arguments in a self-authored statement in which he takes issue with previous Department of Veterans Affairs (VA) decisions and Board discussions in prior ABCMR Records of Proceedings (ROP). With respect to Board discussions, the applicant contends, in effect: 
 
• The Board did not adequately consider the available medical evidence which showed the applicant's psychiatric, marital, and alcohol abuse problems substantively weighed against the alleged willfulness of his misconduct 

• Contrary to the Board's finding that his off-duty problems were not a significant factor in his ultimate separation, expert medical evidence established those problems did, in fact, have a major impact 

• The ROPs contained factual errors; for example, the ROP claimed the applicant underwent a psychiatric evaluation 2 days after the (summary) court-martial; in fact, the evaluation occurred after his special court-martial, and he was already incarcerated in the stockade 


• An ROP claimed the applicant did not submit sufficient proof of his post-service accomplishments; he now resides in Thailand and did not bring all of his awards; however, he included some documents affirming his advanced schooling, community service, and election as a school board member 

• The applicant's records show his commander was dissatisfied with the results of the applicant's court-martial and immediately sought the applicant's administrative separation; his actions reflected bias against the applicant, and the commander exerted undue influence on the psychiatrist's assessment 

• The applicant cites extracts from AR 635-208 and asserts, in effect, his command failed to comply with regulatory requirements 


 
3.  The applicant provides documents from his official military personnel file and his service treatment records; a copy of AR 635-208, dated May 1956; and extracts from VA board/court decisions. Additionally, he offers two letters of support that laud the applicant's service to his community, his performance as a student and a drug rehabilitation counselor, and his contributions as a School Board Trustee. He submits the following as proof of post-service accomplishments: 
 
• U.S. Armed Forces Institute Completion Certificate of Tests of General Educational Development High School Level 

• General Educational Development Test Completion Certificate, dated 30 April 1958 

• Associate of Arts Diploma, dated 15 May 1975 

• University Certificate of Award for General Resident Scholar, dated 12 August 1975 

• University Certificate of Award for being a Foundation Scholar, dated 12 August 1975 

• Certificate verifying the applicant was elected as a Delegate for a Congressional Delegation, dated 24 April 1976 

• Bachelor of Arts Diploma, dated 15 May 1976 

• Memorandum for record affirming the applicant was elected as Democratic Precinct Committeeperson, on 7 September 1976 

• Certificate of Appreciation from the Mayor's Office, dated 13 September 1976 

• Certificate of Election showing the applicant elected as President of a School District Board of Trustees, dated 10 January 1978 

• National School Board Association Certificate of Recognition for Outstanding Service to School Children of the Nation 

• Applicant's business card as Commissioner, Commission on Human Relations 

• Community College Recognition of Service and Merit for Applicant's Parental Involvement 

• University Certificate in Criminal Justice Planning 


• Certificate of Appreciation from a Veterans' Association, dated 31 December 1993 

• Veterans of Foreign Wars Certificate of Recognition for Participation in Proficiency Training, from 24 to 28 April 1995  


 
4.  A review of the applicant's service record reveals the following: 
 
 a.  On 18 June 1956, after completing 1 year, 7 months, and 26 days of honorable service in the Arizona Army National Guard, the applicant enlisted into the Regular Army for 3 years.  
 
 b.  Upon graduation from initial entry training and the award of military occupational specialty (MOS) 130.00 (Armor Crewman), orders assigned him to an armored cavalry squadron at Fort Polk, and he arrived in December 1956. In February 1957, the Army re-designated the applicant's unit as a reconnaissance cavalry squadron and changed the applicant's duty MOS to light weapons infantryman.  
 
 c.  Orders subsequently reassigned the applicant to Fort Shafter, HI, and, on his arrival in August 1957, he was assigned to a military police company, and his DA Form 24 (Service Record) shows his duty MOS was military policeman.  
 
 d.  At some point prior to August 1958, the applicant married a local resident; by August 1958, the applicant's spouse was pregnant with the applicant's child. On 1 August 1958, while in an AWOL status and after an argument with his wife, the applicant ingested a large amount of aspirin and unidentified yellow tablets; the applicant initially received treatment at a civilian hospital and then transferred the local military hospital, where he was admitted for psychiatric observation. On 7 August 1958, an Army medical officer rendered an evaluation of the applicant: 
 
  (1)  The medical officer identified the applicant as a Caucasian male who, on admission, was "coherent, well-oriented, logical and cooperative, although somewhat sullen." The applicant explained that he was, "having an argument with his wife when she threatened to 'take the tablets,' apparently as a suicidal gesture. The patient (applicant) continued, 'I had been drinking a little and on the impulse of the moment, I took the tablets myself.'" 
 
  (2)  In describing the applicant's personal history, the medical officer noted that the applicant had told him, "as a child, he (the applicant) used to threaten suicide; 'when I feel mad, they feel sorry for you that way.'" 
 
  (3)  Under "Final Diagnosis," the medical officer wrote:  
 
  (a)  "000-x52  Passive-aggressive reaction (3212), chronic, moderate, manifested by chronic resentment of authority, use of passive-aggressive devices, dizzy spells, and suicidal gesture; stress, mild (domestic difficulties); predisposition, mild (poor home milieu); impairment, mild. COD: Symptomatically improved, basically unchanged. LOD (line-of-duty): No." 
 
  (b)  Profile Serial: "111112." (According to AR 40-503 (Physical Standards and Physical Profiling for Enlistment and Induction), in effect at the time, a physical profile consisted of six factors, with the last factor representing "Neuropsychiatric." A physical factor rated as a "1" meant the Soldier had no physical limitations; a "2" for neuropsychiatric equated to "Mild, Transient, Psychoneurotic Reaction. Mild Character and Behavior Disorders. Borderline Mental Deficiency"). 
 
  (c)  Disposition: "Discharged to Duty." 
 
 e.  In August 1958, the applicant's command initiated a Line-of-Duty investigation pertaining to the applicant's suicide attempt. 
 
  (1)  As part of that investigation, the applicant gave a sworn statement, in which he testified, "I have been having financial and marital difficulties, and the Army life has been getting on my nerves. The whole thing seemed to pile up on me." The applicant declined to speak further about the circumstances surrounding his suicide attempt.  
 
  (2)  On 12 September 1958, the applicant's spouse provided a sworn statement in which she disclosed she was older than the applicant, and she had a child from a previous marriage. The applicant did not like being "cooped up," but because she was pregnant and her own son had been in and out of the hospital a lot, they were unable to go out as the applicant wanted. She opined the applicant was having trouble adjusting to married life, and, on top of that, the bills started coming in. On the night in question, the applicant was supposed to attend a party, but the applicant's wife did not want to go; they argued and she threatened to take some pills. Later, when the applicant went outside, and due to "all this excitement, drinking, and being pregnant," the applicant's spouse felt dizzy and collapsed. The applicant saw this, went into the bathroom, and took some pills himself. She later found a cab and took the applicant to the hospital. 
 
 f.  On 4 December 1958, the Army determined the applicant's suicide attempt was "not in line of duty, due to own misconduct."   
 
 g.  In April 1959, the applicant underwent a separation physical; on the applicant's SF 88, the examining physician reflected the applicant's prior diagnosis for passive-aggressive reaction and listed the applicant's physical profile as, "111112." On 29 May 1959, the Army honorably released the applicant from active duty based upon an early release policy for overseas returnees; his DD Form 214 (Armed Forces of the United 
States Report of Transfer or Discharge) shows he completed 2 years, 11 months, and 4 days of his 3-year enlistment contract with 8 days of lost time. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists a marksmanship qualification badge. 
 
 h.  On 8 February 1961, and as part of his reentry into the Regular Army, the applicant completed an entrance physical; the examining physician noted no limitations, and reflected the applicant's physical profile as, "111111." On 3 March 1961, the applicant reenlisted into the Regular Army for 3 years; at his entry on active duty, he held the rank/grade of private (PV2)/E-2. Orders immediately transferred the applicant to Fort Monmouth, NJ for training in MOS 282 (Air Defense Radar Repairman).  
 
 i.  Effective 24 April 1961, the applicant's training leadership promoted him to private first class (PFC)/E-3; however, on 3 August 1961, the command reduced him to PV2 due to misconduct. The applicant's service record is void of documentation explaining the reduction. On or about 5 October 1961, the applicant arrived at Fort Bliss, TX for training in MOS 298 (Fire Distribution Systems Terminal Repairman). 
 
 j.  On 9 November 1961, and consistent with the applicant's plea, a summary court-martial convicted the applicant of AWOL during the period 1 to 3 November 1961 (2 days); the court sentenced the applicant to 30-days' restriction and a forfeiture of $25 per month for one month. On 9 November 1961, the summary court-martial convening authority approved the sentence and ordered its execution. 
 
 k.  On 29 November 1961, and consistent with the applicant's plea, a special court-martial found the applicant guilty of AWOL from 14 to 18 November 1961 (4 days). The court sentenced the applicant to 5-months' confinement, forfeiture of $30 per month of 5 months, and reduction to private (PV1)/E-1. On 30 November 1961, the special court-martial convening authority approved the sentence and directed its execution, noting the applicant would be confined at the Fort Bliss stockade. 
 
 l.  On 6 December 1961, a psychiatrist provided a psychiatric evaluation of the applicant. 
 
  (1)  The psychiatrist described the applicant as being of "Spanish descent" who never knew his father, quit school in the 10th grade because he could not get along with his stepfather, and was arrested while a civilian for violating the "Dyer Act" (a Federal law intended to impede the interstate trafficking of stolen vehicles). The psychiatrist opined that, "Much of his difficulty has been a direct result of his excessive drinking, and he (the applicant) states he realizes he 'drinks too much.' Patient married a Hawaiian girl while stationed in Hawaii, and they are presently separated for about one and a half years, since his wife refused to return to the United States when he was discharged." 
 
  (2)  "Mental Status: Examination reveals a husky, 24-year-old male of Spanish descent who related in a friendly, cooperative manner throughout the interview, in spite of his underlying hostility toward authority. He appears to be of average intelligence, however manifests very poor judgment. He recognizes he has a problem with drinking too much but is not well motivated to do anything about it at this time. Motivation for further duty is very poor." 
 
  (3)  "DIAGNOSIS: Antisocial personality, manifested by excessive drinking, frequent infractions of the UCMJ, and shirking assigned responsibilities." 
 
  (4)  "COMMENT: Although this EM (enlisted man) successfully completed one tour of duty in the Army, the indications are that he will not successfully complete his current tour. He is hostile and bitter toward the Army at the present time and only wants to be released. Because of his hostility, his marital difficulty, and his excessive drinking, it is felt that he would be a poor risk for retention on active duty at this time." 
 
  (5)  "RECOMMENDATION: It is recommended that this EM be separated from the service under the provisions of AR 635-208 because of unfitness."  
 
 m.  On 7 March 1962, the applicant's training company commander prepared his recommendation for the applicant's separation under the provisions of AR 635-208.  
 
  (1)  Under "Reason for action recommended," the commander wrote that the applicant had demonstrated he was unfit for further military service because he had displayed "traits of untrustworthiness, irresponsibility, and disrespect for military authority." The commander noted the applicant had failed to profit from his first court-martial conviction, and the command had confined the applicant prior to his second trial based on an inability to "abide by moral restraint."  
 
  (2)  The commander went on to disclose that the applicant had come to his company "after being reduced in his previous company for fighting." Following his first court-martial for AWOL, the applicant told the commander he wanted to start anew and make good in school, but then the applicant went AWOL once more. "I again counseled [applicant], and he admitted that all he wanted was to be discharged from the United States Army and go to Mexico. Then taking into consideration the recommendations of the psychiatrist, [applicant's] attitude and his two convictions by courts-martial, I consider him to be a detriment to the United States Army and should be eliminated from the service under the provisions of AR 635-208." 
 
 n.  On 8 March 1962, the applicant signed a statement acknowledging his commander had advised him of his recommendation for the applicant's discharge due to unfitness, under the provisions of AR 635-208, and told the applicant his reasons for that recommendation. The applicant further affirmed the commander had given him the 
opportunity to request counsel, but the applicant had declined. He also waived his right to a hearing before a board of officers, and he opted not to submit statements in his own behalf.  
 
 o.  On 19 March 1962, the separation authority approved the commander's separation recommendation and directed the applicant's undesirable discharge under other than honorable conditions. On 20 March 1962, a special court-martial order announced the remission of the unexecuted portion of the applicant's special court-martial sentence, effective 22 March 1962. On 23 March 1962, orders discharged the applicant under other than honorable conditions. 
 
 p.  The applicant's DD Form 214 shows he completed 8 months and 12 days of his 3-year reenlistment contract, with 129 days of lost time (AWOL and confinement). Item 26 reflects no awards or decorations. 
 
 q.  On 16 October 1996, the applicant petitioned the ABCMR, requesting an upgraded character of service, a change in the reason and authority for his discharge, and the revision of his reenlistment code to "RE-1" (eligible to reenlist).   
 
  (1)  The applicant argued for clemency: 
 
  (a)  The applicant cited the following: 
 
• His abuse of alcohol, marital problems, financial issues, and immaturity had impaired his ability to serve and contributed to his adverse discharge 

• Since his separation, he had been a good citizen who raised six children, completed a degree in sociology, and was elected to the school board 

• A review of his record would show he committed only minor offenses 


 
   (b)  The applicant additionally explained that, when he was at Fort Monmouth, he had encountered racial discrimination of a kind he had not experienced during his first enlistment; he was dating a black woman, and a black corporal took offense and physically attacked the applicant. When he defended himself, the company commander, also a black male, punished the applicant with nonjudicial punishment under Article 15, UCMJ. The command subsequently transferred the applicant to Fort Bliss, which is just across the border with Mexico; at Fort Bliss, "I was exposed to some of the most discrimination I ever endured in my life. Besides the discrimination, I was having many problems and I did not know how to confront them, so I ran. I went AWOL for three days in November and went AWOL again for nine days in November."  
 
  (2)  On 16 July 1997, the Board voted to deny relief, stating. "The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the 
interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law." 
 
 r.  On 21 September 1998, the applicant requested reconsideration of his previous requests.  
 
  (1)  The applicant maintained the Board had wrongly concluded that he had failed to provide evidence of an error or injustice; he argued the anti-social personality diagnosis was wrong and contended the correct diagnosis should have been passive-aggressive reactions. Based on the foregoing personality disorder, the Army was supposed to have separated him for unsuitability, per AR 635-209 (Personnel Separations – Discharge – Unsuitability), not unfitness under AR 635-208. 
 
  (2)  On 2 December 1999, the Board recommended the denial of the applicant's request, stating the overall merits of the case, including the applicant's latest submissions and argument, were insufficient to warrant a reversal of its previous decision.  
 
  (a)  The Board additionally stated that, rather than personality disorder, the applicant's separation had resulted from a "litany of misconduct" in which the applicant had been engaged. "Further, the Board determined that even if the antisocial personality diagnosis was in error, it would not have affected the characterization of the applicant's service in light of his lengthy record of misconduct." 
 
  (b)  The Board went on to congratulate the applicant for his post-service accomplishments but stated it did not grant relief solely based on such achievements. 
 
 s.  On 18 May 2012, the applicant submitted a second request for reconsideration. 
 
  (1)  The applicant's addressed the Board's decisions in 1997 and 1999 and pointed to errors in previous Department of Veterans Affairs decisions about service-connection and benefits. The applicant declared, "I was the victim of racial discrimination, the Texas I went to in 1961 was during the great changes for minorities in this country, and Texas had just desegregated it school system in 1961, the anti-Mexican feeling was high at that time, my company commander, was the one I felt was most anti- Mexican, on arriving at Ft. Bliss I sensed that feeling." 
 
  (2)   On 25 July 2012, the Army Review Boards Agency administratively closed the applicant's request, stating the applicant had submitted his request beyond the one-year time limit.  
 
 t.  On 7 November 2020, the applicant reapplied for reconsideration.  
 
  (1)  The applicant declared he and his commanding officer had had a "personality clash" because of discrimination; following the applicant's first court-martial for AWOL, and as the applicant was serving his sentence of restriction, the commander's discriminatory actions increased. Knowing the consequences of either hitting or disobeying an officer, the applicant opted instead to go AWOL a second time. 
 
  (2)  The applicant gave a timeline of his service and noted that his first 242 days of service were "misconduct free." In addition, he wrote, "Important to note, all misconduct of record (2 AWOLS) were litigated, all misconduct resolved." The applicant then addressed the Constitutional rights of military personnel, cited statements made by his company commander in the separation recommendation, made arguments based on a U.S. Court of Appeals for Veterans Claims decision, and identified procedural errors in nonjudicial punishment proceedings.  
 
  (3)  On 26 October 2021, the Board voted to deny the applicant's request. Under "Board Discussion," the Board noted the absence of the applicant's separation packet and stated, "His DD Form 214 shows he was separated in March 1962, under  
AR 635-208 for unfitness with an under other than honorable conditions discharge. He served 8 months and 12 days of active service. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination." 
 
5.  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. 
 
6.  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. 
 
 
 
 
 
7.  MEDICAL REVIEW: 
 
    a.  The applicant requests reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He contends his personality disorder was secondary to acoustic trauma. 
    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) On 18 June 1956, after completing 1 year, 7 months, and 26 days of honorable service in the Arizona Army National Guard, the applicant enlisted into the Regular Army for 3 years; 2) Orders subsequently reassigned the applicant to Fort Shafter, HI, and, on his arrival in August 1957, he was assigned to a military police company; 3) On 1 August 1958, while in an AWOL status and after an argument with his wife, the applicant ingested a large amount of aspirin and unidentified yellow tablets; 4) In describing the applicant's personal history, the medical officer noted that the applicant had told him, "as a child, he (the applicant) used to threaten suicide; 'when I feel mad, they feel sorry for you that way.  The applicant was diagnosed with Passive-aggressive reaction (3212), chronic, moderate, manifested by chronic resentment of authority, use of passive-aggressive devices, dizzy spells, and suicidal gesture; 5) In August 1958, the applicant's command initiated a Line-of-Duty investigation pertaining to the applicant's suicide attempt. On 4 December 1958, the Army determined the applicant's suicide attempt was "not in line of duty, due to own misconduct; 6) On 29 May 1959, the Army honorably released the applicant from active duty based upon an early release policy for overseas returnees; 7) On 3 March 1961, the applicant reenlisted into the Regular; 8) On 9 November 1961, and consistent with the applicant's plea, a summary court-martial convicted the applicant of AWOL during the period 1 to 3 November 1961; 9) On 29 November 1961, and consistent with the applicant's plea, a special court-martial found the applicant guilty of AWOL from 14 to 18 November 1961; 10) On 6 December 1961, a psychiatrist provided a psychiatric evaluation of the applicant and diagnosed him with Antisocial personality, manifested by excessive drinking, frequent infractions of the UCMJ, and shirking assigned responsibilities.  The provider further noted that although the applicant successfully completed one tour of duty in the Army, the indications are that he will not successfully complete his current tour.  The provider recommended the applicant be separated from the service under the provisions of AR 635-208 because of unfitness; 11) On 7 March 1962, the applicant's training company commander prepared his recommendation for the applicant's separation under the provisions of AR 635-208.  The commander wrote that the applicant had demonstrated he was unfit for further military service because he had displayed "traits of untrustworthiness, irresponsibility, and disrespect for military authority; 12) On 19 March 1962, the separation authority approved the commander's separation recommendation and directed the applicant's undesirable discharge under other than honorable conditions; 13) On 23 March 1962, orders discharged the applicant under other than honorable conditions. 
    c.  The VA electronic medical record (JLV), ROP, and casefiles were reviewed.  Included in the applicant’s casefile was documentation that showed that on 7 August 1958, while psychiatrically hospitalized for an apparent suicide attempt, the applicant was diagnosed with Passive-Aggressive Reaction, manifested by chronic resistance of authority, and use of passive-aggressive devices (e.g., dizzy spells and suicidal gestures).  The applicant endorsed a history of threatening suicide during childhood when becoming mad, as it resulted in others feeling sorry for him.  Also included in the casefile was the results of a psychiatric evaluation conducted on 6 December 1961 that showed the applicant diagnosed with Antisocial Personality Disorder manifested by excessive drinking, frequent infractions of UCMJ and shirking assigned responsibilities.  It was recommended the applicant be separated under provisions of AR 635-208 because of unfitness.    
    d.  A review of JLV showed the applicant 60 percent SC for physical disabilities (i.e., impaired hearing and tinnitus).  The applicant does not have a behavioral health (BH) related service-connected disability.  Records showed that numerous BH consultations were placed for the applicant between November 1996 and June 1999 that noted the applicant seeking care for a history of depression, adjustment disorder and personality disorder.  Records appear void of encounter visits associated to the consultations.  The applicant first BH treatment engagement with the VA appears to have occurred on 19 July 1999 at the Tucson, AZ, VA whereby the applicant reported a 20+ year history of depression and anxiety.  He reported current sleep problems and on overwhelming urge to hurt others when stressed.  His reported method of diffusing was to remove himself from stressful situations, but he reported finding it more difficult to control his anger. He was diagnosed with a rule-out of mood disorder and scheduled for outpatient treatment. Encounter note dated 8 September 1999 showed the applicant presented for intake.  He reported a history of anxiety and depression and noted that he was currently taking psychotropic medication.  The applicant complained of sleep difficulties, problems with anger, and stress related to his job.  He reported being three months away from being able to submit for early retirement but concerned that if he doesn’t control his anger, he may be dismissed without protections. The applicant underwent psychological testing that suggested he suffered from chronic anxiety and dysthymia.  Additional consultations for outpatient BH care were placed for the applicant between December 1999 and March 2001.  Records appear void of any encounters associated with the consultation request and JLV appears void of any BH treatment records for the applicant after March 2001.  No additional civilian BH encounters were provided for review.  
    e.  The applicant requests reconsideration of his previous request to upgrade his UOTHC discharge to honorable.  He contends he suffered acoustical trauma which caused his personality disorder.  A review of the records showed the applicant was diagnosed with Passive-Aggressive Reaction Chronic and Antisocial Personality during service.  Post-service records (VA BH Problem List/JLV) showed him diagnosed with 
Depressive Disorder NOS and Insomnia.  Records were void of a service connected BH diagnosis.    Given the characterological nature of personality disorders and that the applicant’s diagnosis of Passive-Aggressive Reaction, during his first enlistment, was deemed “chronic” in nature, supports that his personality disorder existed prior to service.  Additionally, a review of the available literature appeared void of peer-reviewed papers showing a causal relationship between acoustic trauma and the development of personality disorders, in adults. Further, Liberal Consideration does not offer relief for personality disorders as they are characterological in nature and typically exist prior to service.   Given the above, there is insufficient evidence in the records that the applicant had a BH disorder that mitigated his misconduct, under Liberal Guidance.  Records suggest the applicant’s separation was proper and equitable and there is no evidence to warrant an upgrade of the applicant discharge characterization. 
    f.  Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct.  However, the applicant contends his misconduct was related to personality disorder secondary to acoustic trauma, and per Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration.    
    (1)  Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was related to personality disorder secondary to acoustic trauma experienced during service. 
 
    (2)  Did the condition exist, or experience occur during military service? Yes.  
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? No The applicant requests reconsideration of his previous request to upgrade his UOTHC discharge to honorable.  He contends he suffered acoustical trauma which caused his personality disorder.  A review of the records showed the applicant was diagnosed with Passive-Aggressive Reaction Chronic and Antisocial Personality during service.  Post-service records (VA BH Problem List/JLV) showed him diagnosed with Depressive Disorder NOS and Insomnia.  Records were void of a service connected BH diagnosis.    Given the characterological nature of personality disorders and that the applicant’s diagnosis of Passive-Aggressive Reaction, during his first enlistment, was deemed “chronic” in nature, supports that his personality disorder existed prior to service.  Additionally, a review of the available literature appeared void of peer-reviewed papers showing a causal relationship between acoustic trauma and the development of personality disorders, in adults. Further, Liberal Consideration does not offer relief for personality disorders as they are characterological in nature and typically exist prior to service.   Given the above, there is insufficient evidence in the records that the applicant had a BH disorder that mitigated his misconduct, under Liberal Guidance.  Records 
suggest the applicant’s separation was proper and equitable and there is no evidence to warrant an upgrade of the applicant discharge characterization. 
 
BOARD DISCUSSION: 
 
The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health condition.  Based on a preponderance of evidence, the Board determined 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 
 
:xx :xx :xx DENY APPLICATION 
 
 
  
BOARD DETERMINATION/RECOMMENDATION: 
 
The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AC97-05011 on 16 July 1997, AR1999015452 on 2 December 1999, AR20120011044 on 25 July 2012, and AR2020000271 on 26 October 2021. 
  8/1/2023

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, United States Code, section 1556 (Ex Parte Communications Prohibited) provides that the Secretary of the Army shall ensure 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, which directly pertains to or has material effect on the applicant's case, except as authorized by statute. 
 
2.  AR 635-208, in effect at the time, established policies and procedures for the elimination of enlisted Soldiers who were found to be unfit for further military service.  
 
 a.  Commanders took action under this regulation when it was clearly established that, despite reasonable attempts to rehabilitate or develop the individual into a satisfactory Soldier, further effort was unlikely to succeed, or rehabilitation was impracticable and disposition under other regulations was inappropriate.  
 
 b.  The regulation listed the following reasons for separation under this provision: 
 
• frequent incidents of a discreditable nature with civil or military authorities 

• sexual perversion, to include lewd and lascivious acts, indecent exposure, or other indecent acts 

• drug addiction or possession of a habit forming narcotic or marijuana 

• an established pattern of shirking 


• an established pattern showing dishonorable failure to pay just debts 


 
 c.  Implementation Principles.  
 
  (1)  "It is recognized that all enlisted personnel with behavior problems cannot be rehabilitated by proper leadership and/or psychiatric assistance. It is inevitable that a certain percentage of individuals entering the service subsequently will demonstrate defective moral habits, irresponsibility, inability to profit from experience, untrustworthiness, lack of regard for the rights of others, and inability to put off pleasures and impulses of the moment. Often these individuals show*poor performance despite intelligence, superficial charm, and a readiness to promise improvement. The effective leader is able to rehabilitate only that percentage of persons with behavior problems who are amenable to leadership." 
 
  (2)  "The main objective of these and related regulations is the efficient utilization of manpower. Retention or elimination of an individual is based on whether he is capable of rehabilitation into a useful Soldier." 
 
  (3)  "Discharge is an appropriate procedure for an individual whose behavior renders him repeatedly vulnerable to punitive or other adverse personnel action. The fact that an individual with an undesirable discharge may be denied certain benefits or encounter difficulty in securing employment should be carefully explained to the individual who chooses not to conform^ in order to furnish an incentive toward rehabilitation." 
 
 d.  For Soldiers separated for unfitness, the regulation required separation authorities to reduce the Soldiers to the lowest enlisted grade, and the Soldiers were normally issued an undesirable discharge unless particular circumstances warranted a general or an honorable discharge. 
 
3.  AR 635-209, in effect at the time, prescribed policies and procedures for the separation of Soldiers who were considered unsuitable for continue military service. A Soldier could be separated under this provision when they had been diagnosed with a character or behavior disorder, as listed in Special Regulation (SR) 40-1025-2 (Medical Service – Joint Armed Forces Nomenclature and Method of Recording Psychiatric Conditions). 
 
4.  SR 40-1025-2, in effect at the time, provided a nomenclature of psychiatric conditions consistent with modern psychiatry concepts. Under "Character and Behavior Disorders," the SR identified the following: 
 
 a.  "Antisocial Personality." The term referred to chronically antisocial individuals who, despite a normal moral background, were always in trouble, profiting neither form 
experience nor punishment, and maintaining no real loyalties to any person group, or code. 
 
 b.  "Passive-Aggressive Reaction." The aggressiveness is expressed in such reactions by passive measure, such as pouting, stubbornness, procrastination, inefficiency, and passive obstructionism. 
 
5.  AR 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, provided the following guidance with regard to issuance of honorable and general discharges: 
 
 a.  Honorable Discharge. 
 
  (1) Separation authorities furnished an honorable discharge to Soldiers who met the following qualifications; the Soldier had to have: 
 
• Conduct ratings of at least "Good"; 

• Efficiency ratings of at least "Fair"; 

• No general court-martial convictions; and 

• No more than one special court-martial conviction 


 
  (2)  Notwithstanding the foregoing criteria, a Soldier could still receive an honorable character of service, despite the presence of disqualifying entries, when the separation authority determined the Soldier's subsequent honest and faithful service, performed over a greater period, outweighed those disqualifying entries. 
 
 b.  General Discharge. Separation authorities awarded a general discharge under honorable conditions to Soldiers whose service did not qualify them for an honorable discharge. 
 
6.  Army Regulation (AR) 635-212 superseded AR 635-208, in 1966. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972; on 1 December 1976, the Army published additional guidance, following settlement of a civil suit.   
 
 a.  This revision required a Soldier's service, during the specific period addressed in the report, to form the sole basis for the Soldier's type of discharge and the character of service. In addition, a physician trained in psychiatry had to have evaluated and diagnosed any Soldier separated for unsuitability due to personality disorder.   
 
 b.  In connection with the foregoing changes, a DA memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," required retroactive 
application of the revised policies, attitudes and changes in reviewing applications for discharge upgrades, based on personality disorders.   
 
 c.  A second memorandum dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable, except in cases where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be a "clear and demonstrable reason" sufficient to warrant a less than fully honorable discharge. 
 
7.  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. 
 
8.  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//