IN THE CASE OF: BOARD DATE: 24 August 2023 DOCKET NUMBER: AR20230000400 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) appeal letter, dated 26 July 2022 * VA summary of benefits letter, dated 12 August 2022 * Self-authored statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140003723 on 4 November 2014. 2. The applicant states an upgrade is warranted because he is totally and permanently disabled, and he is eligible to receive this benefit as a Veteran. He had to retire from his job with the U.S. Post Office due to his history of post-traumatic stress disorder (PTSD). He is permanently disabled and receiving 100% disability; he would like his status changed to honorable as well as his tax status changed to tax exempt. 3. A portion of the applicant's request concerns changing his tax status to exempt. This issue is outside the ABCMR's purview; therefore, this issue will not be further addressed. 4. The applicant enlisted in the Regular Army on 11 February 1981. Upon completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist). The highest grade he attained was E-4. 5. The applicant received developmental counseling on or about: * 30 April 1983, for failing to follow instructions * 11 May 1983, for allowing a female Soldier in the barracks * 2 June 1983, for not being at work at the appropriate time 6. On 9 June 1983, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty at the time prescribed on or about 1 June 1983. His punishment included reduction in grade to E-3 and forfeiture of $174.00 pay. 7. On 15 August 1983, the applicant accepted NJP under Article 15 of the UCMJ for failing to properly secure the Arms Room keys, on or about 3 August 1983; and for failing to be at his appointed place of duty at the time prescribed, on or about 4 August 1983. His punishment included reduction to E-2, forfeiture of $150.00 pay, and 14 days extra duty and restriction. 8. On 31 August 1983, the applicant accepted NJP under Article 15 of the UCMJ, for willfully disobeying two lawful orders from a superior commissioned officer, on or about 20 August 1983. His punishment included reduction in grade to E-1, forfeiture of $200.00 pay for two months, and 30 days extra duty and restriction. 9. On 31 August 1983, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 10. The applicant was formally counseled on 4 November 1983, for failing to keep his personal appearance and uniform up to military standards. 11. The applicant's commander notified him on 7 December 1983, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 13, for unsatisfactory performance. He further stated he was recommending an under honorable conditions (general) characterization of service. 12. The applicant consulted with legal counsel on 8 December 1983 and was advised of the basis for the contemplated separation actions and its effects; the rights available to him; and the effects of a waiver of his rights. He elected to submit a statement in his own behalf. His statement stated that he understood he was being put out of the Army under Chapter 13. Rather than accepting this chapter, he would rather stay and finish out his tour of service, seeing that he only had 65 days until his expiration term of service. 13. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. As the specific reasons, his commander cited the applicant's pattern of not being at his appointed place of duty, despite repeated counseling and non-judicial punishment, and his demonstrated reluctance to conform to military standards of performance or behavior. 14. By legal review on 9 December 1983, the applicant s Chapter 13 separation action was found to be legally sufficient for further processing. 15. Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge on 13 December 1983, and the issuance of a DD Form 257A (General Discharge Certificate). 16. The applicant was discharged on 23 December 1983. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general). He was credited with 2 years, 10 months, and 13 days of net active service this period. 17. The applicant petitioned the Army Discharge Review Board requesting upgrade of his under honorable conditions (general) discharge. On 16 July 1986, the Board voted to deny relief and determined his discharge was both proper and equitable. 18. The applicant petitioned the ABCMR requesting upgrade of his under honorable conditions (general) discharge. On 4 November 2014, the Board voted to deny relief and determined that the overall merits of the case were insufficient as a basis for correction of his records. 19. The applicant provides a VA summary and service verification documents that show he was granted a total disability rating based on individual unemployability for service-connected PTSD. These documents are provided in their entirety for the Board s review within the supporting documents. 20. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. He contends he had PTSD that mitigates 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 11 February 1981; 2) On 9 June 1983, the applicant accepted non-judicial punishment (NJP) for failing to be at his appointed place of duty at the time prescribed. On 15 August 1983, the applicant accepted NJP for failing to properly secure the Arms Room keys. On 31 August 1983, the applicant accepted NJP for willfully disobeying two lawful orders from a superior commissioned officer; 3) The applicant was discharged on 23 December 1983, Chapter 13, for unsatisfactory performance. His service was characterized as under honorable conditions (general); 4) The Army Discharge Review Board denied the applicant s request for an upgrade on 16 July 1986, and he was again denied for an upgrade by the ABCMR board on 4 November 2014. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant s military service and medical records. Th VA s Joint Legacy Viewer (JLV) was also evaluated. d. The applicant asserts he was experiencing PTSD while on active service, and his misconduct should be mitigated. There is insufficient evidence the applicant reported or was diagnosed with a mental health condition while on active service. On 31 August 1983, he was seen for a Mental Health Status Evaluation in relation to his separation proceedings. He was not diagnosed with a mental health condition, and he was psychiatrically cleared for administrative action. e. A review of JLV provided evidence the applicant has sought behavioral health treatment at the VA since 2015. In 2015, he was diagnosed with service-connected PTSD (70%) as the result of the applicant reporting that he felt unsafe in Germany in the 1980s and another Solider around him died as the result of a negligent discharge of a weapon. It was reported that as the applicant also experienced additional trauma after his active service and numerous other stressors, all of these experiences resulted in the applicant s level of PTSD symptomology. f. 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 partially 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. In addition, he was diagnosed with service-connected PTSD in 2015. (2) Did the condition exist or experience occur during military service? Yes, the applicant reported experiencing PTSD while on active service and has been diagnosed with service-connected PTSD since 2015. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially, there is insufficient evidence the applicant was reporting or experiencing PTSD while on active service. In 2015, the applicant reported experiencing a number of stressors and traumatic events after his active service. However, he described feeling unsafe while stationed in Germany due to terrorist activities, and he also reported being in the area when a Soldier died from a negligent discharge from a weapon. These events were found to qualify as traumatic events, but the extent of the impact these events had on the applicant s behavior at the time of his active service were unclear in his VA medical record. The applicant s misconduct did involve erratic and insubordinate behavior, which can be a natural sequalae to PTSD. Therefore, there is some partial evidence the applicant was experiencing PTSD, which mitigates his misconduct. 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 PTSD claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding there being only some partial evidence that he was experiencing PTSD. 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 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. REFERENCES: 1. Title 10, U.S. Code, Section 1556, 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. 2. Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 3. Army Regulation 635-200 sets forth the requirements for the administrative separation of enlisted personnel. The version in effect at the 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. Chapter 13 provided for separation due to unsatisfactory performance when in the commander s judgment the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation would be characterized as honorable or under honorable conditions. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 6. 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, 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) AR20230000400 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1