IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230001139 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 180 (Request Pertaining to Military Records) * Affidavit in support of application, dated 24 June 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 27 April 1982 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, that he wanted to serve his country. His transition back to civilian life was hard. He has no job and has a serious drinking problem. While in the service, he had mental health issues, specifically, anxiety and fear. He did not receive treatment. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) as a contributing and mitigating factor in the circumstances that resulted in his separation. 4. On 3 March 1978, the applicant enlisted in the Regular Army. The highest grade he attained was E-4. 5. On 8 June 1979, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. However, his mood was determined to be depressed and hyperactive. 6. The applicant reenlisted on 26 November 1980. 7. On 13 July 1981, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 8 July 1981. His punishment included reduction in grade to E-3, and 14 days restriction and extra duty. 8. On 21 October 1981, he accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on 12 October 1981 and 13 October 1981; and for disobeying a lawful order on 13 October 1981. His punishment included reduction in grade to E-2, forfeiture of $250.00 pay for two months, and 20 days confinement. 9. Before a summary court-martial at Fort Sill, OK on 7 January 1982, the applicant was found guilty of disobeying a lawful order by driving with a suspended driver s license on or about 25 December 1981. The court sentenced him to reduction to E-1, forfeiture of $367.00 pay for one month, and confinement at hard labor for 30 days. The sentence was approved on 8 January 1982, and the record of trial was forwarded for appellate review. 10. On 10 March 1982, the applicant accepted NJP under Article 15 of the UCMJ, for disobeying a lawful order on 6 March 1982. His punishment included forfeiture of $100.00 pay for one month, and 14 days restriction and extra duty. 11. On 7 April 1982, the applicant voluntarily declined a separation medical examination. 12. On 8 April 1982, the applicant's commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separation Enlisted Personnel), paragraph 14-33, for misconduct frequent incidents of a discreditable nature. As the specific reasons, his commander cited the applicant's court-martial, NJPs, and counseling for behavior and attitude. 13. The applicant's commander notified the applicant on 12 April 1982, of pending discharge proceedings under the provisions of Army Regulation 635-200, paragraph 14- 33, for misconduct. 14. On 13 April 1982, the applicant acknowledged that he had been advised by counsel of the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He acknowledged he understood that, as the result of issuance of a discharge UOTHC, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws. He declined to submit a statement in his own behalf. 15. Consistent with the chain of command recommendations, the separation authority approved the recommended discharge on 21 April 1982 and directed the issuance of an UOTHC Discharge Certificate. 16. The applicant was discharged on 27 April 1982. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for frequent involvement in incidents of a discreditable nature with civil or military authorities. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 4 months, and 10 days of net active service this period with 22 days of lost time. He had 2 years, 8 months, and 25 days of prior active service. 17. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment [see Administrative Notes]. 18. In reaching its determination, the Board can consider the applicant s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 19. On 16 March 2023, the ABCMR staff requested that the applicant provide medical documents to support his claim of PTSD as a contributing factor in the circumstances that resulted in his discharge. He did not respond. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge to under honorable conditions, general. He contends his misconduct was related to PTSD. 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 3 March 1978; 2) On 13 July 1981, he accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 8 July 1981; 3) On 21 October 1981, he accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on 12 October 1981 and 13 October 1981; and for disobeying a lawful order on 13 October 1981; 4) Before a summary court-martial at Fort Sill, OK on 7 January 1982, the applicant was found guilty of disobeying a lawful order by driving with a suspended driver s license on or about 25 December 1981; 5). On 10 March 1982, the applicant accepted NJP under Article 15 of the UCMJ, for disobeying a lawful order on 6 March 1982; 6). On 8 April 1982, the applicant's commander recommended the applicant be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separation Enlisted Personnel), paragraph 14-33, for misconduct frequent incidents of a discreditable nature; 7). The applicant was discharged on 27 April 1982. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for frequent involvement in incidents of a discreditable nature with civil or military authorities c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not revied as it was not in use during the applicant s time in service. Included in the applicant s casefile was a Mental Status Evaluation, dated 8 June 1979, that showed the applicant was psychiatrically cleared for any administrative action deemed appropriate by command. As outlined in the ROP, on 7 April 1982 the applicant voluntarily declined a separation medical examination. No other military BH-related medical records were provided for review. A review of JVL was void of any BH treatment encounters for the applicant and he does not have a service-connected disability. No civilian BH records were provided for review. d. The applicant is requesting upgrade of UOTHC discharge to under honorable conditions, general. He contends his misconduct was related to PTSD. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and be provided no documentation supporting his contention of PTSD. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service that mitigated his misconduct. However, he contends his misconduct was associated with PTSD, and per Liberal Consideration guidance his contention is sufficient to warrant the Board s consideration. 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 his misconduct was related to 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? No. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and be provided no documentation supporting his contention of PTSD. In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined 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 frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination and the applicant provided none on his own behalf. 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 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 27 April 1982, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 780303 UNTIL 801125 REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, Section 1556, 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. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 4. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, paragraph 14-33b(1) provides for the separation of Soldiers when they have patterns of misconduct for frequent incidents of discreditable nature with civil or military authorities. The issuance of a discharge UOTHC is normally considered appropriate for separations under the provisions of this chapter. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), on 3 September 2014, 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. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001139 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1