IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000597 APPLICANT REQUESTS: in effect, upgrade of his under other than honorable conditions (UOTHC) discharge, inclusion of his reenlistment, and correction of his service dates. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Certification of Service Letter, dated 10 March 2022, and VA Identification (ID) card 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 originally enlisted on 3 September 1979, but his service records show he enlisted on 9 September 1980. The Army is stating his original DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first enlistment cannot be found. a. He was issued a general discharge, for failing to adapt to military life. The correct dates should be from 9 September 1979 to 3 September 1982, if his memory is correct. b. Secondly, he reenlisted in 1988 almost six years after his first discharge. He later decided not to reenlist after finding out his wife was pregnant. He has post-traumatic stress disorder (PTSD) from what he experienced i.e., fights, arguments, and continuous training at Fort Riley, KS. One distinct incident was when a sergeant assaulted him in the commander s office. When he hit the sergeant back, he was retaliated against and harassed by other Soldiers. He is now being denied VA healthcare because of inaccurate information. 3. In preparation for enlistment, the applicant completed a DD Form 1966 (Record of Military Processing Armed Forces of the United States). This form shows in pertinent part, he had no prior service in the Regular Army or the U.S. Army Reserve (USAR). The form was verified on 25 July 1980. 4. The applicant enlisted in the USAR Delayed Entry Program on 25 July 1980. He enlisted in the Regular Army on 9 September 1980, for a 3-year service obligation. Upon completion of training, he was awarded military occupational specialty 11B (Infantryman). He attended advanced individual training at Fort Riley, KS, and was subsequently assigned there as his first duty station. 5. In April 1981, he accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from his superior commissioned officer on or about 3 March 1981. His punishment included forfeiture of $100 pay and a reduction to E-1 (suspended for 30 days). 6. His DA Form 2-1 (Personnel Qualification Record Part II)) shows he was reported absent without leave (AWOL) on 6 May 1981. A DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows adverse action was initiated against him for AWOL, on the same date. 7. Court-martial charges were preferred against the applicant on 4 June 1981. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 6 May 1981 until an undetermined date. 8. His DA Form 2-1 shows he was AWOL until 21 July 1982. He was place on excess leave on 2 August 1982. 9. The applicant s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, Orders Number 166- 492, issued by Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA on 26 August 1982, reassigned him to the transfer point for separation processing. 10. On 3 September 1982, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for administrative discharge - conduct triable by court-martial. He was reduced to the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing 9 months and 8 days of net active service, with 1 month and 14 days prior inactive service. He had 442 days of lost time. 11. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. A Chapter 10 discharge is a voluntary request for discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 12. The applicant s contention of having other periods of service is not supported by his military record. Additionally, the available record is void of and the applicant did not provide, evidence of a PTSD diagnosis during his period of service. 13. The applicant provides a VA ID card and certification of service letter, which shows he entered active duty on 9 September 1980 and was discharged on 3 September 1982. 14. 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. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge, inclusion of his reenlistment, and correction of his service dates. The applicant asserts PTSD as a mitigating factor in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The applicant enlisted in the USAR Delayed Entry Program on 25 July 1980. He enlisted in the Regular Army on 9 September 1980. * In April 1981, he accepted non-judicial punishment (NJP) for willfully disobeying a lawful order from his superior commissioned officer on or about 3 March 1981. * Court-martial charges were preferred against the applicant on 4 June 1981. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 6 May 1981 until an undetermined date. His DA Form 2-1 shows he was AWOL until 21 July 1982. * The rest of the applicant s separation packet is missing from his record. The applicant s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, orders are present reassigning him to the transfer point for separation processing. * On 3 September 1982, the applicant was discharged. His DD Form 214 shows he was separated under AR 635-200, Chapter 10, for administrative discharge - conduct triable by court-martial. His discharge was characterized as UOTHC. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant s completed DD Form 149, his ABCMR Record of Proceedings (ROP), VA certification of service letter, DD 214 and other documents from his service record. The applicant s separation packet was not fully available. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that PTSD form what he experienced at FT Riley mitigated his discharge. The applicant also raises several other concerns about the accuracy of his service record; however, this advisor will focus on the request for upgrade only. The applicant noted that while at FT Riley many incidents had occurred, but one that affected him the most is being struck by a SGT in the CO Office and that he struck him back, but then experienced retaliation for this incident and was harassed by other soldiers. e. There are no electronic health records (EHR) from his time in service (given the years he served), and the applicant did not supply any other medical or mental health records, nor were any included in his service record. There is no indication the applicant was ever diagnosed with a mental health condition, nor that he received mental health care. There is also no evidence, outside of self-report, of any violence during his training or time at FT Riley. f. Per the applicant s EHR, the applicant only began engaging with the VA in 2022. The applicant is not service connected. Given his discharge characterization, he would not typically receive benefits or care through the VA. Applicant has actively engaged in support through the HUD VASH program, primarily getting support around housing and employment. However, there are a few notes specific to mental health. In a psychiatry intake note from 19 August 2022, the applicant reported some visual hallucinations at night (hypnogogic), insomnia, and fighting in his sleep since he was in the military. He reported during this intake that he felt picked on while in the military (and detailed several fights) but denied feeling traumatized by it. He also shared a significant trauma, a boating accident where he was severely injured, and his 7-year-old daughter died. He was seen for approximately three more appointments with this provider (prior to losing ability to get care due to discharge status) and was diagnosed with insomnia with a provisional diagnosis of unspecified trauma related disorder. The applicant has also been diagnosed with unspecified sleep disorder, reaction to severe stress (appears secondary to housing concerns), nightmare disorder, homelessness (unsheltered homeless, sheltered homelessness, homeless unspecified, inadequate housing), and other specified problems related to psychosocial circumstance. The applicant did not provide any other medical or mental health records to support is assertion. g. It is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, outside of self-report, to indicate the applicant had a mitigating condition or experience during his time in service. There is evidence the applicant has been diagnosed with mental health concerns since his time in service, however he has never been diagnosed with PTSD, and the trauma related disorder he did get provisionally diagnosed with appeared to be associated with the loss of a child post military discharge. However, he does note some ongoing trauma related symptoms since his time in the military, particularly the nightmares centered around fighting and ongoing sleep disorder. This applicant s full separation packet is missing, but based court martial charges just prior to separation, this advisor presumes this documentation is accurate. This advisor, with caution, will provide an opine based on the available information. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts PTSD and trauma during training. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts PTSD secondary to experiences while at FT Riley. There is no medical or mental health documentation from his time in service, however this is to be expected given the years he served. There is some mental health data available in his EHR since his discharge, though the applicant is not service connected, and his records indicate he has denied feeling traumatized secondary to his experiences in the Army. However, he did note ongoing nightmares related to his time in the service suggesting the occurrences of reported violence (which he has consistently reported) may have bothered him more than he was willing to report. The applicant did not provide any evidence, outside of self-report, that he experienced trauma or violence though he has been consistent in his reporting of this violence, giving it more credence. Of note while this advisor is aware the whole separation packet is not available, we do know that court martial charges were initiated for going AWOL, and upon his return from AWOL he was immediately separated with no evidence of new charges being filed. His separation, therefore, seems to be only related to the AWOL charge, and that is what I will focus my opine. AWOL can be an avoidance behavior, consistent with the natural history and sequalae of several mental health conditions, including trauma. There is a nexus between PTSD and the misconduct that led to his court martial and eventual separation. The previous charge of disobeying a direct order, would not be mitigatable as there is no nexus between disobeying orders and PTSD. In summary, there is minimal evidence the applicant experienced a mitigating condition, however per Liberal Consideration his contention is sufficient to warrant the board s consideration. BOARD DISCUSSION: 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 request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The applicant contends that his misconduct is based on PTSD. However, evidence of record is insufficient to determined that he was diagnosed with PTSD while in service and he did not provide any on his own behalf for consideration by the Board. Nevertheless, the Board considered granting relief. However, based on the preponderance of evidence available for review, the Board determined that 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 : : :xx GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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 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 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. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to private/E-1, in accordance with governing regulation. 3. 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 PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. 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. 5. 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) AR20230000597 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1