IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000576 APPLICANT REQUESTS: An upgrade of his under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement * Three Character Reference Statements 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 in effect, he received a general discharge based on being non- compliant with taking medication; however, this was incorrect. He was hospitalized but was unaware that he had any medicine allergies. He was prescribed medications that made him ill, with nausea, vomiting, diarrhea, and a rash. He was later told by a Veteran Affairs (VA) physician on sick call about his symptoms, but no changes were made to his treatment plan. He stopped taking the medicine and later learned he was allergic to penicillin. 3. On 24 February 1969, the applicant was inducted in the Army of the United States for a 2-year term. He did not complete initial entry training. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * 30 May 1969, for failing to go his appointed place of duty at the time prescribed on or about 24 May 1969; his punishment included forfeiture of $23 pay, extra duty, and 14 days restriction * 20 July 1969, for failing to obey a lawful order on or about 18 July 1969; his punishment included forfeiture of $20 pay, 14 days extra duty, and restriction * 17 October 1969, for being absent from his unit from on or about 6 October 1969 until 8 October 1969; his punishment was forfeiture of $28 pay for one month 5. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant s discharge processing. 6. On 27 October 1969, the separation authority approved the applicant s separation and directed the issuance of an DD Form 257A (General Discharge Certificate), under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability), due to unsuitability. The commander noted the applicant waived a personal appearance before a Board of Officers. 7. On 31 October 1969, the applicant was discharged. The DD Form 214 he was issued shows he was separated under the provisions of Army Regulation 635-212, with separation program number 264 (unsuitability). He was issued a General Discharge Certificate and credited with completing 8 months and 5 days of net active service. 8. On 26 September 2019, the ABCMR administratively closed the applicant s petition without action and without prejudice, due to failure to respond for requested supporting medical documents. 9. The applicant provides three support letters, attesting to his character as a choir member, his brotherly love and assistance for fellow church members, dependability, honesty, pattern of never being late, funny, kind, reliable, trustworthy, compassionate, and committed to assisting veterans. 10. 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. 11. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a discharge upgrade. He states: Discharge characterization received was general / under honorable conditions. This decision was based on the claim that I was noncompliant with my medication. This is not true. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. The applicant s DD 214 shows he entered the regular Army on 24 February 1969 and received an under honorable conditions discharge on 31 October 1969 under the provisions provided in AR 635-212, Discharge Unfitness and Unsuitability (8 November 1966). The separation program number 264 denotes the reason for separation as Unsuitability, character and behavioral disorders. d. From his undated self-authored statement: At the time of my hospitalization in the service, I was not aware of any medication allergies. The medication perceived made me physically ill. I experienced nausea, vomiting, diarrhea, and a rash. I told the VA physician on a sick call about my symptoms. He made no changes in my treatment plan. I stopped taking the medications because they were making me ill. I later discovered that I was allergic to penicillin. e. No medical documentation was submitted with the application and the period of service under consideration predates AHLTA and iPERMS. f. The applicant received an Article 15 on 30 May 1969 for failure to repair (bed check). He received a second Article 15 on 20 July 1969 for failure to obey an order (mow the grass around Chapel 2). His third Article 15 was received on 17 October 1969 and was for absence without leave (AWOL) from 6-8 October 1969. g. The applicant s separation under provisions of AR 635-200 was approved by the commanding officer of the First Advanced Individual Training Brigade on 27 October 1969. h. JLV shows the applicant was granted a service-connected disability rating for Dysthymic disorder in 2013. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: Dysthymic disorder (2) Did the condition exist or experience occur during military service? YES (3) Does the condition or experience actually excuse or mitigate the discharge? YES: As there is an association between dysthymic disorder, avoidant behaviors, and difficulty with authority figures, the condition fully mitigates the applicant s failure to repair, period of AWOL, and failure to obey an order. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. One possible outcome was to deny relief as the applicant was in trainee status and did not receive an MOS. However, two Board members found sufficient evidence of mitigating circumstances to warrant a recommendation for relief. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx : :xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :xx : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 31 October 1969 showing the character of service as Honorable. 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 basic authority for the 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. 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. c. The version in effect at that time was revised on 1 December 1976 following the settlement of a civil suit. Thereafter, the type of discharge and the character of service imposed were to be determined solely based upon the individual's military record during the respective period of enlistment. Further, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. (1) The Brotzman Memorandum required retroactive application of revised policies, attitudes, and changes in reviewing applications for upgrade of discharges based on personality disorders. (2) The Nelson Memorandum expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable, except in cases where there was "clear and demonstrable reasons" why a fully honorable discharge should not be given. 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 (DRB) 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 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. 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, 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) AR20230000576 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1