IN THE CASE OF: BOARD DATE: 28 July 2023 DOCKET NUMBER: AR20230000660 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his characterization of service from under other than honorable conditions to medical or under honorable conditions (general). 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 from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty), 7 September 1984 * State of California Department of Corrections and Rehabilitation Mental Health Evaluation, 15 November 2012 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 AR20130019057 on 18 June 2014. 2. The applicant states, in effect, he was diagnosed with plantar fasciitis and told he would be medically discharged several months before being kicked out the Army for behavior issues. Had he been released from duty after the plantar fasciitis diagnosis and in a timely manner, he would not have been given an under other than honorable conditions discharge. He states, due to PTSD, he went to prison. The prison psychologist diagnosed him with PTSD stemming from the incident dated 10 August 1984, when private first class (PFC) B was killed. 3. The applicant provides a State of California Department of Corrections and Rehabilitation Mental Health Evaluation, dated 15 November 2012. The evaluation states the applicant is serving a life sentence for first degree murder and he has been in prison for the past 23 years. The applicant reported he started experimenting with drugs and alcohol at age 12. He reported he started having PTSD symptoms when his friend was killed during a training exercise in 1983-1984. The applicant reported he started having nightmares and was unable to sleep and started using cocaine shortly after his friend was killed. He reported that he then started having problems and was discharged from the Army for drug related and rape charges. 4. A review of the applicant s service record shows: a. DD Form 4 (Enlistment Document) shows he enlisted in the Regular Army on 14 January 1982. b. A Military Police Report dated 19 November 1982, shows an investigation revealed that while conducting an authorized health and welfare inspection, a partially burnt, hand rolled cigarette containing suspected marihuana was found in the ashtray of the applicant s vehicle. The applicant and the evidence were transported to the military police investigator s (MPI) office and a Beckton Dickinson field test was conducted on the suspected marihuana obtaining positive results for tetrahydrocannabinol (THC). c. On 23 November 1982, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession some marihuana, on or about 19 November 1982. His punishment included forfeiture of $133.00 pay for one month and 7 days confinement at the Correctional Custody Facility at Fort Ord. d. DA Form 4187 (Personnel Action), dated 20 June 1983, shows the applicant s duty status changed from present for duty (PDY) to confinement civil authorities. It states the applicant was in civil confinement as a result of having been implicated in kidnapping, attempted rape, and coercion. e. DA Form 4187, dated 8 December 1983, shows the applicant s duty status changed from confined civil authorities to PDY. It states the applicant was found guilty of attempted rape and coercion and sentenced to be jailed for 6 months. The period of time already spent in jail was considered and the court satisfied. The applicant was released from jail and returned to PDY. The period of time that was spent in civilian confinement was counted as lost time. f. CID Form 94 (Agent s Investigation Report), dated 27 April 1984 and 2 May 1984, shows: 1) On 27 April 1984, the agent was notified that the Military Police (MP) desk sergeant possessed evidence of a forgery/larceny at his location. On that same day the MP desk sergeant provided the agent with a money order, drawn on the Bank of America, in the amount of $200.00. The name LK was written on the pay to the order of line and the name JK was on the purchaser line. A stamp on the front of the document reflected that the money order was negotiated on 27 January 1984 and on the back was the hand-written phrase pay to the order of and had the applicant s name and signature. Identifying data reflected the applicant s name, rank, unit, and social security number and the information was verified using the unit s Alpha Roster. The desk sergeant provided an affidavit signed by JK stating he had not cashed the money order. 2) The agent interviewed LK, the wife of JK and she stated in January 1984 she was visiting friends in another state and her husband sent her a $200.00 money order. When the money order had not arrived after four days, she contacted the post office. Personnel at the post office told her that they held the letter for four days and then returned it to sender. JK never received the returned letter. The agent coordinated with the Postal Inspector who stated the U.S. Postal Inspector Service would assume investigative jurisdiction of the case. g. Court-martial charges were preferred against the applicant on 13 June 1984 for the following: * Charge I (Article 123): one specification of on or about 27 January 1984, with intent to defraud, falsely make the signature of LK as an indorsement to a certain $200.00 Bank of America money order number 112134532 payable to JK , which said money order would, if genuine, apparently operate to the legal prejudice of another * Charge I (Article 123): one specification of on or about 27 January 1984, with intent to defraud, wrongfully transfer a certain $200.00 Bank of America money order number 112134532, payable to LK , a writing which would, if genuine, apparently operate to the legal prejudice of another, the indorsement to which said money order was, as he, the said applicant, then well knew, falsely made. * Charge II (Article 121): one specification of on or about 27 January 1984, steal $200.00, United States currency, the property of PFC JK. * Charge II (Article 121): one specification of on or about 27 January 1984, steal a certain Bank of America money order number 112134532, payable to LK of a value of about $200.00, the property of PFC JK. h. On 25 June 1984, the applicant s immediate commander recommended trial by special court-martial empowered to adjudge a bad conduct discharge. The applicant s intermediate commanders echoed the immediate commander s recommendation. i. DA Form 3997 (Military Police Desk Blotter), dated 16 July 1984, shows that during a command directed search a shaving kit containing two smoking devices with suspected marijuana residue, marijuana particles, a partially burnt hand rolled cigarette suspected to be marijuana, and three screens in the trunk of the applicant s car. The applicant was transported to the MP station and processed. While being processed it was found that the applicant had an outstanding warrant for speeding. He was detained until arrival of the county sheriff s department. j. On 16 July 1984, the Staff Judge Advocate (SJA), recommended that specifications 1 and 2 of Charge II be combined into a single specification alleging larceny of $200.00 United States currency and a Bank of America money order. The SJA also recommended that specification 1 of Charge I be amended to reflect that the signature of JK, not LK was made on the stolen money order. The SJA recommended that the charges and specification, as amended, be referred to trial by special court-martial empowered to adjudge a bad conduct discharge. k. Additional court-martial charges were preferred against the applicant on 24 July 1984 for: * Charge (Article 134): once specification of on or about 16 July 1984, wrongfully possess some amount of marijuana. * Charge (Article 134): one specification of on or about 16 July 1984, possess some amount of cocaine. l. The court-martial convening authority approved the recommendations of the SJA and on 25 July 1984 a special court-martial was convened at Fort Ord, CA. m. On 1 August 1984, after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. The applicant acknowledged that he made the request of his own free will and was not coerced by any person. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further understood, he could be deprived of many or all Army benefits, he could be ineligible for many, or all benefits administered by the Veteran s Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State law and encounter substantial prejudice in civilian life because of an under other than honorable discharge. n. On 28 August 1984, the immediate commander and the intermediate commanders recommended approval of the request for discharge for the good of the service in lieu of trial by court-martial, with characterization of service under other than honorable conditions. o. The separation authority approved the recommended discharge on 30 August 1984, directed the applicant be reduced to the lowest enlisted grade, and be issued an under other than honorable conditions discharge. p. The applicant was discharged on 7 September 1984. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, in the lowest enlisted grade, and his service was characterized as under other than honorable conditions. He completed 1 year, 8 months, and 4 days of net active service during the covered period and had lost time from 20 June 1983 to 7 December 1983. His DD Form 214 shows he was awarded the Army Service Ribbon. q. On 18 June 2014, the ABCMR denied the applicant's request for correction of his discharge under other than honorable conditions to show he received a medical discharge. The Board stated that the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of the case were insufficient as a basis for correction of the applicant s records. 5. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting an upgrade of his 7 September 1984 discharge characterized as under other than honorable conditions. He states: I was diagnosed with plantar fasciitis and told that I would be medically discharged several months before being kicked out for behavior issue. Plus, I got PTSD during the delay. Had I been relieved from duty after plantar fasciitis diagnosis, I would not have been given OTH [other than honorable] several months later. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. The applicant s DD 214 for the period of service under consideration shows he entered the regular Army on 13 July 1982 and was discharged under other than honorable conditions on 7 September 1984 under the separation authority provided by chapter 10 of AR 635-200, Personnel Separations Enlisted Personnel (5 July 1984): Discharge for the Good of the Service. d. The request for a discharge upgrade was denied by the ABCMR on 18 June 2014 (AR20130019057). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. A Personnel Action (DA Form 4187) shows the applicant was confined by civilian authorities (Monterey Jail) on 20 June 1983 after having been implicated in Kidnapping, Attempted rape, and coercion. A DA 4187 shows the applicant was returned to duty from civilian confinement on 8 December 1983: SM [service member] appeared at Monterey County Court on 20 Jun 83 and was rescheduled for court appearance for 8 Dec 83. On 8 Dec 83, SM was found guilty of attempted rape and coercion and sentenced to be jailed for 6 months. The period of time already spent in jail was considered and the court satisfied. SM was released from jail and returned present for duty 1330 hours, December 1983. The period of time that was spent in civilian confinement will count as lost time. f. The applicant s first Charge Sheet (DA Form 458) dated 13 June 1984 shows he was charged with two specifications of intent to defraud/forgery in violation of Article 123 of the UCMJ; and two specifications of larceny in violation of Article 121 of the UCMJ. His second DA 458 shows he was charged with two violations of Article 134 of the UCMJ for wrongful possession of marijuana and cocaine on or about 16 July 1984. g. On 1 August 1984, the applicant voluntarily requested discharge for the good of the service under provisions in chapter 10 of AR 635-200. His request was approved by the Commanding General of the 7th Infantry Division and Fort Ord 30 August 1984 with the directive he be given a discharge under Other Than Honorable Conditions and the applicant receive an immediate reduction in rank under paragraph 8-11 of AR 635-200. h. The applicant submitted a November 2012 mental health summary showing he had been previously diagnosed with PTSD and was currently diagnosed with adjustment disorder with anxiety: The inmate is a 51-year-old African American male serving 1st prison term for 1st degree murder. The inmate has been in prison for the past 23 years. The inmate does not recall mental health services as a child and/or growing up. However, the inmate reports he stared experimentation with Marijuana and Alcohol at ager 12 and history of Crack Cocaine. The inmate reports he started having PTSD symptoms when his friend was killed during a war game while training in the Army in 1983-84. The inmate stated he started having nightmares and unable to sleep. The inmate indicated he also used Crack Cocaine shortly after his friend was killed and according to him, he started having problems in the Army, was discharged from the Army for drug related and rape charges. The inmate reports history of gang involvement ever since he has been incarcerated and noted he dropped out in 2007 when he became SNY. The inmate was a history of CCCMS LOC from 2003-2005 with a diagnosis of MDD, among other diagnoses included bipolar and mood disorders NOS [not otherwise specified] The inmate was previously prescribed Wellbutrin and Prozac. However, the inmate reports he was healed from PTSD symptoms in 2006 and no longer needed the medication and/or mental health services. The inmate is currently expressing anxiety surrounding board as they have recommended that he seek therapy. The inmate reports he is a lifer and wants to start looking at his feelings and emotions. i. It is the opinion of the ARBA medical advisor that a discharge upgrade remains unwarranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? PTSD. (2) Did the condition exist or experience occur during military service? Yes (3) Does the condition or experience actually excuse or mitigate the discharge? Partially: As PTSD is associated with self-medicating with drugs and/or alcohol, the condition mitigates his possessions of marijuana and cocaine. However, the condition does not affect one s ability to distinguish right from wrong and adhere to the right so in cannot mitigate the remaining UCMJ violations. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant s request and published DoD guidance for consideration of discharge upgrade requests. The Board considered the relative weight and severity of the misconduct that led to the discharge and whether it supported relief. The Board found no nexus between the misconduct and applicant s contention that it relates to a diagnosis of PTSD. Further, the Board found insufficient evidence that the applicant had a condition or experience during his time in service which would mitigate his misconduct. Based on a 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 : : : 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 to amend the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019057 on 18 June 2014. 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. Army Regulation (AR) 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member is given reasonable time to consult with a consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the separation authority was authorized to direct a general discharge certificate if such was merited by the member's overall record during their current enlistment. For members who had completed entry level status, characterization of service as honorable was not authorized unless the member's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000660 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1