IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230000864 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and: * the narrative reason for separation be changed to “Secretarial Authority” * a corresponding separation code and authority for separation * a new DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Affidavit (Exhibit 5) * Attorney Brief/Letter * Exhibit 1 - Army Discharge Review Board (ADRB) Proceedings * Exhibit 2 - ABCMR Letter (AR20090018490) * Exhibit 3 - Record of Proceedings (ROP) (AR20090018490) * Exhibits 4, 20 and 22 - Department of Veterans Affairs Letters (three) * Exhibits 6, 7, 19, 23, 25 - Medical Documents * Exhibit 8 - DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Exhibits 9 thru 18 - Service Documents * Exhibit 21 - College Transcript * Exhibits 26 thru 34 - Medical Articles (nine) 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 AR20090018490 on 27 April 2010. 2. The applicant states: a. As a new argument, his decision to join the Army was influenced by his family’s history of service. During his service in Korea, he witnessed a jeep drive off a bridge. He could hear the passengers screaming for help. He was on guard duty and unable to leave his post to help those in the crash. This event was very traumatic to him; he can still hear their screams today. After the incident he struggled and began having auditory hallucinations, paranoia, and severe emotional distress. He knows now he was experiencing the beginnings of his schizoaffective disorder (other mental health) and struggling with post-traumatic stress disorder (PTSD) from trauma. At the time he did not understand it. It was so overwhelming he did not want to live. There were mountains around the base, and one of his auditory hallucinations was hearing cuckoo birds calling from the mountains, making a lot of noise. He thought if he went away from the base, he would be safe from what he was experiencing. He felt paranoia towards everybody around him and had trouble trusting others. He did not have any social support to help him cope with what he was going through. He felt alone. b. Coping with the mental stress from this incident was the start of his mental illness. He began to struggle with doing all parts of his job. He had a couple events where he did not show up for work on time or went absent without leave (AWOL). He did not have access to mental health care and turned to alcohol and barbiturates to self-mediate. They would make him numb, which gave him temporary relief from his symptoms. However, no self-medication, amount of sleep, nor anything else helped him escape from his hallucinations and paranoia. Things spiraled. c. As things got worse for him the Army was not able to help him out. He had an undiagnosed illness, and he was struggling. The environment was harsh and emotionally charged. There was intense racism and difficult race relations in Korea. He felt his superiors just wanted him out. He was trying to escape the hallucinations. He was charged with absences, breaking restriction, and assault on Sergeant (SGT) . He does not remember the confrontation with SGT and apologizes. d. When he came off AWOL he was put into the stockade. He was given the option of court martial or going home and he decided to go home. He was discharged the day before his 19th birthday. He struggled after discharge and his symptoms got worse before they got better. He received some drug treatment from Veterans Affairs (VA) in the 1980s, but drug treatment did not treat the root cause. He was still undiagnosed and untreated for schizoaffective disorder. He finally got the mental healthcare he needed in 2009 and 2010. Before the diagnosis he went through periods of homelessness. e. He has worked, pursued an education, and built an honorable career. He feels ashamed about how his service ended. He attempted suicide more than once. In 2012, he started consistent treatment for his mental health, and he is married. The VA says he is honorable for VA purposes. He was as honorable as he could be. 3. Counsel reiterates the aforementioned information, and: a. On 10 November 1972, the applicant received an UOTHC discharge. The applicant struggled to establish a healthy life after his discharge from the Army. He experienced hallucinations, worsening paranoia, and unaddressed trauma that "got worse before it got better." He experienced some periods of growth, such as successful periods at school or work, but eventually his undiagnosed mental illness would overwhelm him. In June 1977, he, on his own initiative, entered the VANATA (VA Narcotic and Alcoholic Treatment) Program and during his three months of inpatient treatment was productive in all aspects of the treatment. He was eventually granted entitlements to VA benefits in 1979. In this decision the VA noted that his "attempts to clean up his life appear to be significantly above those of normal recipients of an UOTHC discharge". b. The applicant developed schizoaffective disorder while serving in the U.S. Army, likely triggered by witnessing a traumatic event. His schizoaffective disorder caused him to have overwhelming and distressing symptoms of hallucinations and paranoia, which led to him going AWOL for brief periods and attempting to evade apprehension by military police. His misconduct was mitigated by his mental illness, and his mental illness outweighs his UOTHC discharge. If he had not gotten sick, he would have continued to perform well in the service and achieved an honorable discharge. He has worked very hard to overcome his illness and has achieved sobriety and recovery since 2011 after finally receiving an accurate diagnosis and thorough mental healthcare. As a service-connected disabled veteran, he deserves this Board's care and liberal consideration. He respectfully requests an upgrade to his discharge in the interest of fundamental fairness and justice. 4. The applicant enlisted in the Regular Army on 28 July 1971 for two years. His military occupational specialty was (MOS) 11B (Light Weapons Infantryman). 5. He served in Korea from 10 January 1972 to 10 November 1972. 6. The applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 March 1972, for failing to go at the time prescribed to his appointed place of duty on 17 March 1972; and for being absent from his unit without authority on or about 20 March 1972 at 0730 hours until on or about 2300 hours. His punishment consisted of reduction to private 2/E-2 (suspended), forfeiture of $100.00 pay for two months, restriction and extra duty. 7. The applicant's available record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing. However, the applicant provides portions of his service records, Exhibits 8 through18. A Military Police Report, dated 29 July 1972, shows a complaint of misuse of Identification (ID) card and assault on a noncommissioned officer (NCO)/curfew violation regarding the applicant. SGT noticed the applicant attempting to gain entrance into a location and asked him for his ID card and to get into the jeep. The applicant surrendered an ID card belonging to . The applicant swung at SGT then fled. He was overtaken by SGT and transported to the Military Police office where he became belligerent and was charged with the above. 8. On 13 September 1972, the applicant’s commander recommended he be tried by special court martial. 9. The applicant consulted with legal counsel on 21 September 1972 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an undesirable discharge; the procedures and rights that were available to him. a. After consulting with legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations-Enlisted Separations), Chapter 10, in lieu of trial by court-martial. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He elected not to submit statements in his own behalf. 10. The chain of command concurred and recommended approval of an undesirable discharge. 11. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 18 October 1972 and directed the issuance of an DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 10 November 1972. His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number 246 [for the good of the service-in lieu of trial by court-martial] and Reenlistment Code RE-3. He completed 1 year, 3 months, and 13 days of net active service. His service was characterized as UOTHC. He was awarded or authorized the National Defense Service Medal and the Armed Forces Expeditionary Medal. 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 consulted with counsel and requested discharge under the provisions of Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The applicant provides: a. Exhibits 8 through 18 - Service Documents to include his DD Form 214 as discussed above. b. Exhibits 1 through 3 - ADRB and AR20090018490, Record of Proceedings. c. Exhibit 19 - VA letter, dated 2 August 1978, which shows the applicant was in the VANTA program as an inpatient for three months. He was productive and received both individual and group therapy. The social worker was convinced, and it was his professional judgment that if the applicant continued along this line his complete recovery from those aspects of character disorder that resulted in his abusing seemed good. d. Exhibit 20 - VA letter, dated 5 January 1979, determined the applicant’s underlying problem in service was due to drugs and the claimant’s excellent progress has been professionally determined, it was concluded that the discharge on 10 November 1972 was not under dishonorable conditions. Entitlement to VA benefits is established. e. Exhibits 6, 7, 19, 23, 25 - Medical documents regarding schizoaffective disorder and polysubstance dependence in sustained full remission. f. Exhibit 21 - College transcript. g. Exhibit 22 - VA letter, dated 28 September 2010, shows entitlement to nonservice connected pension was granted. h. Exhibit 24 - VA letter, dated 31 July 2014, shows the applicant was considered competent and an evaluation of schizoaffective disorder, at 100 percent (%) disabling, is proposed to be decreased to 70%. i. Exhibit 4 - VA letter, dated 27 October 2014, shows an evaluation of schizoaffective disorder, at 100% disabling, is continued. j. Exhibits 26 through 34 - Medical articles (nine) regarding mental health. 15. On 19 April 1974, the ADRB determined the applicant’s discharge was proper and equitable and denied his request for an upgrade of his discharge. 16. On 27 April 2010, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the records of the applicant. 17. On 26 April 2013, an ABCMR letter shows a case was considered and denied by the ABCMR on 27 April 2010. The applicant could request reconsideration of an earlier ABCMR decision if the request was received within one year of the ABCMR’s original decision and had not previously been reconsidered. 18. 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. 19. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requests reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) character of service. He asserts he was experiencing mental health conditions including PTSD during his active service, which contributed to 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 into the Regular Army on 28 July 1971, and he was stationed in Korea in January 1972; 2) The applicant accepted non-judicial punishment (NJP) on 21 March 1972, for failing to go at the time prescribed to his appointed place of duty and for being absent from his unit without authority from 0730 hours-2300 hours; 3) The applicant's available record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing. However, the applicant provides portions of his service records. A Military Police Report, dated 29 July 1972, shows a of misuse of Identification (ID) card and assault on a noncommissioned officer (NCO)/curfew violation regarding the applicant. 4) The applicant was discharged on 10 November 1972, Chapter 10, for the good of the service-in lieu of trial by court-martial. His service was characterized as UOTHC, and he completed 1 year, 3 months, and 13 days of active service; 5) On 19 April 1974, the ADRB denied his request for an upgrade of his discharge; 6) On 27 April 2010, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) and VA documentation provided by the applicant were also examined. d. The applicant noted mental health conditions including PTSD as contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence the applicant reported mental health symptoms while on active service. A review of JLV and the VA documentation provided by the applicant afforded sufficient evidence the applicant has been diagnosed with service-connected schizoaffective disorder since August 2010. There is insufficient evidence the applicant has been diagnosed with PTSD related to events which occurred during his military service. The applicant’s Compensation and Pension (C&P) evaluation in 2011 noted there was also insufficient objective evidence the applicant was experiencing symptoms of schizoaffective disorder during his military service beyond self-report. The applicant was also officially diagnosed with schizoaffective disorder decades after his military service. Due the nature of the of schizoaffective disorder, it was determined the applicant’s military service resulted in an exasperation of the applicant’s mental health condition’s typical course. Therefore, the applicant’s mental health condition was determined to be service connected. There was also insufficient evidence the applicant meets criteria for PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. 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 contends he was experiencing mental health conditions including PTSD that contributed to his misconduct. The applicant has been diagnosed with service-connected schizoaffective disorder. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing other mental health conditions and PTSD while on active service, and he has been diagnosed with service-connected schizoaffective disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was experiencing PTSD while on active service beyond self-report. While the applicant has been diagnosed and treated for service-connected schizoaffective disorder, it was noted by his C&P evaluator, who determined the nature of the service connection for this condition, that there was insufficient objective evidence the applicant met criteria for schizoaffective disorder while on active service. The applicant was not diagnosed with this condition till decades after his active service. Therefore, there is insufficient evidence the applicant was experiencing a mental health condition including PTSD, while on active service which would mitigate his misconduct. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The opine noted there is insufficient evidence the applicant was experiencing PTSD while on active service beyond self-report. The applicant was not diagnosed with this condition till decades after his active service. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 3 months, and 13 days of active service for this period. Evidence of record shows, at the time of separation, documentation supports the separation code, authority for separation and narrative reason for separation properly identified on the DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s narrative reason and separation code are not warranted. The Board found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board found 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 Docket Number AR20090018490 on 27 April 2010. 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. Section 1556 of Title 10, U.S. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 3. Army Regulation 635-5 (Personnel Separations-Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established the standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The information entered thereon reflects the conditions as they existed at the time of separation. It states for: a. Block 11c, (Reason and Authority), is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635–5–1 and the narrative reason for separation will be entered as provided in Army Regulation 635-5-1. In accordance with regulatory guidance in effect at the time, Separation Program Number "246" was the appropriate code to assign to Soldiers discharged for the good of the service – in lieu of trial by court-martial. b. Block 13a (Character of Service) characterization or description of service is determined by directives authorizing separation. Proper completion of this block is vital since it affects the Soldier’s eligibility for post-service benefits. Only six standard characterizations in this block are authorized: honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable and uncharacterized. 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 post-traumatic stress disorder (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; 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. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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 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 grounds. 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) AR20230000864 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1