IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20230000849 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable, and an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Clinical Treatment Coordinator Letter, dated 8 August 2022, with Authorization of Release of Protected Health Information 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 AR1998000640 on 11 February 1999 and AR2004099967 on 1 July 2004, respectively. 2. The applicant states he was injured during training, which led to his continued mental health symptoms. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and other Mental Health issues are related to his request. 3. On 4 May 1974, the applicant underwent a medical examination in preparation for enlistment in the Regular Army. He noted he was in fair condition (but stated he did not know), he stuttered or stammered habituality, and had frequent trouble sleeping (sleeping three hours a day). The examining physician qualified him for service. 4. On 20 June 1974, the applicant enlisted in the Regular Army for a 3-year service obligation, at 18 years of age. Upon completion of training, he was awarded military occupational specialty 12B (Combat Engineer). 5. On 12 August 1974, while in training at Fort Polk, LA, the applicant was treated for falling while carrying food, hitting his head, and lacerating his lip. After being evaluated for a concussion, in an emergency room, he was stitched up, and about an hour later reported having a black out spell without prodroma or injury. He later started complained of having dizzy episodes and mild headaches. The physician’s impression was a mild concussion secondary to his fall. 6. He was assigned to Germany; however, after approximately three months he was reassigned to Fort Hood, TX on or about 25 February 1975. 7. On 18 March 1976, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with following offenses: • failing to go to his appointed place of duty at the prescribed time on or about 2 February 1976 • being absent without leave (AWOL) from on or about 14 January 1976 until 22 January 1976 • willfully disobeying a lawful order from his superior noncommissioned officer to sign in off leave on or about 16 March 1976 • wrongfully possessing 15 grams more or less of marijuana on or about 16 March 1976 • wrongfully and without authority wearing an unauthorized insignia on his uniform on or about 15 March 1976 8. On 18 March 1976, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he elected to submit the following statement in his own behalf: Dear Sir, I [the applicant] am writing you in concern with the charges being held against me at the present time. I am in hopes that you will take this into consideration, that I am the only means of support for my family. I am also a good man who loved to serve in the First Team at Fort Hood, TX. My records show no article 15s or court-martials. Also, I would like to call to your attention that my father Mr. J_ D. F_, has just passed away on last Friday and I was in jail at the present time, I was released on Tuesday afternoon to attend the funeral on Sunday. Afterwards I reported to my company and ask for permission of my CO [commanding officer] to have an emergency leave for several days and he agreed to do so if I would return on Monday before 12:00 ready for duty and given these orders I did so. But at the time my CO was having charges pressed and typed up against me that were unknown to me, then at a later time my CO informed me that he was going to have me placed in the stockade so that I could stand a summary court-martial, and I asked him what for and he told me I was charged with desertion and a number of other charges making a total of four charges at present time. But later on, that day he asked me if I would accept a chapter 10 discharge and I said yes but what I am asking of you is to consider my case and see what you may do to help me because if I get kicked out of the First Team at Fort Hood, TX with an undesirable discharge. I don’t know what I would do for my family as a sure means of support and my mother is also disabled too! I am in hope that you will take all the things into your consideration and give me an honorable or general discharge. I am at the ground and on my knees bowed down in front of you for your mercy and I am still pleading for your help in case of support. I am also the father of two children who have not seen me in the past four or five months, so if you can and will be kind to hear my plea, hear my cry, surely hear my call I need you help so badly that I could cry out loud because I don’t know which way or where, nor how to turn not look for work because I have spent my entire life in the Army and I don’t want to leave on a bad discharge. 9. On 24 March 1976, the applicant's commander recommended approval of his discharge request and the issuance of an undesirable discharge. He noted, he does not have reasonable grounds to believe the applicant was at the time of his misconduct, mentally defective, deranged, or abnormal. He further noted the applicant had a history of desertion, AWOL, civilian confinement, and convictions. His intermediate commander endorsed the request the same day and added that the applicant had been harassing the family members of those in his unit. 10. On 29 March 1976, the separation authority approved the applicant's request for discharge for the good of the service and directed his reduction to the lowest enlisted grade with the issuance of an DD Form 258A (Undesirable Discharge Certificate). 11. On 30 March 1976, the applicant underwent a separation medical examination. The corresponding documentation shows he listed 39 ailments and stated he was in poor health. The examining physician evaluated his complaints; noted that he had high frequency hearing loss and myopia; and cleared him for separation. 12. On 20 April 1976, the applicant was discharged. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with separation program designator code KFS [for the good of the service – in lieu of court martial]. His service was characterized as UOTHC. He was credited with completing 1 year, 8 months, and 18 days of net active service, with 44 days of lost time. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The ABCMR considered the applicant’s petition for upgrade of his service characterization in Docket Numbers AR1998000640 on 11 February 1999 and AR2004099967 on 1 July 2004. The Board determined that he was properly discharged and denied his request for relief. 15. The applicant provides a clinical treatment coordinator’s letter and authorization of release, which states she worked with the applicant in an inpatient psychiatric hospital setting and agreed to assist him with filling out his application. He provided the coordinator the following pertinent information: a. His history of growing up in Texas and joining the military at age 15. His military training included jump training at Fort Benning, GA. During war games in Germany, he sustained a head injury and hearing loss in his left ear, when he was thrown from an armored personnel carrier that he was riding in. b. In April/May 1976 he took leave because his father died, upon arriving home his aunt had also passed. He was bereaved and went AWOL for approximately 20 days. When he returned he was given the option of four year in the stockade and four years active duty, which he declined. c. The clinical treatment coordinator opined that an assessment by a Veterans Affairs psychiatrist is warranted, as the applicant has struggled with several mental health symptoms in his life consistent with PTSD, and potentially TBI. 16. 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. 17. 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, his previous denials be Army Discharge Review Board, 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 an upgrade of his under other than honorable conditions 20 April 1976 discharge. He claims PTSD, TBI [traumatic brain injury], and other mental health conditions are related to his request stating: “Sustain injury during training that let to continued MH [mental health] symptoms.” 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 20 June 1974 and was discharged under other than honorable conditions on 20 April 1976 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (27 August 1975): Discharge for the Good of the Service. His military separation code of KFS denotes separation in lieu of trial by court martial. The DD 214 shows The DD 214 shows a total of 44 days of lost time under 10 USC § 972 incurred from 14-21 January 1976 and 2 February 1976 thru 8 March 1976. d. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. e. Medical documentation shows the applicant sustained a “mild concussion secondary to a fall” thought due to a syncopal episode in August 1974. f. An 18 March 1976 Charge Sheet (DA Form 458) shows the applicant was charged with failure to repair, absence without leave, disobeying a lawful order, wrongful possession of marijuana, and: “Wrongfully and without authority wear upon his uniform the insignia of grade of a Reserve Officer Training Corps Lieutenant Colonel, a 1st Cavalry Division combat patch on the right shoulder, an 8th Infantry Division patch on the left shoulder, an unidentified pink and white shoulder cord, a white carnation pinned on right breast, a marksmanship qualification badge for approximately seven weapons, three unidentified ROTC ribbons, and an ROTC officer’s overseas cap with private stripes pinned on.” g. On 18 March 1976, 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 Acting Commander of the 1st Cavalry Division on 29 March 1976. h. The applicant’s pre-separation 30 March 1976 Report of Medical Examination does not list any diagnoses or defects and he was found qualified for separation. i. From an 8 August 2022 “To Whom it May Concern” a social worker who “worked with Mr. [Applicant] in an inpatient psychiatric hospital setting and agreed to assist him with filling out a DD Form 149 in order to initiate this process:” “He reports that while doing ‘war games’ training he was thrown from an APC [armored personnel carrier] and hit his head when he landed in a snowbank. He says he believes he sustained a head injury as well as hearing loss in his left ear as a result. In April/May of 1976 he took leave to go to his father's funeral. Upon arriving home, he was told his aunt, who raised him, had also passed away. Patient said that at this time he was bereaved and went AWOL for approximately 20 days. Upon returning he was given the option of 4 years in the stockades and 4 years in active duty, which he declined. This led to his dishonorable discharge. Mr. [Applicant] has struggled with several mental health symptoms in his life consistent with PTSD and potentially TBI. It is my clinical opinion that an assessment by a VA psychiatrist is warranted to see if he would qualify for an appeal of his discharge status.” j. JLV contains no clinical encounters and there are no diagnoses on his medical problem list. k. There is insufficient probative evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. It is the opinion of the Agency Medical Advisor that discharge upgrade is unwarranted. However, as per Liberal Consideration, the applicant’s self-assertion of PTSD, TBI and Other Behavioral Health conditions merits consideration by the board. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, 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 ABCMR set forth in Dockets Number AR1998000640 on 11 February 1999 and AR2004099967 on 1 July 2004, respectively. 8/15/2023 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, 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. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 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. 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. 4. 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. 5. 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; 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. 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//