IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230001553 APPLICANT REQUESTS: reconsideration of his previous request for correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 8 March 1979, to show his characterization of service as honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Self-authored statement, dated 21 November 2022 * 26 pages of military service records, dated 10 March 1969 to 5 March 1979 * Statement of support, dated 14 April 2013 * Funeral Bulletin, dated 11 July 2013 * List of “Veterans Affairs (VA) Contacted Offices,” undated * Two letters, MOFDAPS Comprehensive Behavioral Health Services, dated 1 June 2015 and 27 September 2021 * Letter, Department of VA, dated 26 March 2021 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 AR20210013909 on 31 May 2022. 2. As a new argument, the applicant states, in effect: a. He is a Disabled Veteran who suffers from post-traumatic stress disorder (PTSD), depression, obesity due to depression, and mood disorder. He receives mental health treatment from the VA and a civilian psychiatrist. During basic training, he witnessed the brutal rape of a recruit by three other recruits. Several days later, the recruit jumped through a second-floor barracks window during morning formation. These incidents affected the applicant greatly. b. He was honorably discharged from the Army National Guard in 1972. He reenlisted in 1978 under the Stripes for Skills Program. His recruiter was a malicious liar who failed to follow procedures. The applicant is a victim of recruiter connivance and administrative errors. c. As a junior enlisted Soldier and Licensed Practical Nurse (LPN), he performed the work of a commissioned officer. He had no formal disciplinary actions against him. He had three minor, corrected medication errors out of 7,000 medication passes. He worked a terminal ward without love and moral support. The ward was understaffed. He was mentally exhausted and knew he was unfit for duty on the ward. During this time, he was treated for chronic sinusitis, high blood pressure, and a torn meniscus. Undiagnosed PTSD and depression only made things worse. d. The letter regarding failure to repair was a fabrication. He is a victim of unfair treatment, multiple administrative lies and errors, and physical injury. He has suffered the loss of education, employment, savings, family, and self-esteem. 3. The applicant enlisted in the Army National Guard on 31 July 1968. He was called to active duty for the completion of his initial entry training. His DD Form 214 shows he was honorably released from active duty on 10 March 1969 and returned to the control of the New Jersey Army National Guard (NJARNG). 4. A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the NJARNG on 18 February 1972 due to dependency of his wife and three children. He was credited with 3 years, 6 months, and 18 days of service. The highest rank/grade he attained was private first class (PFC)/E-3. 5. The applicant completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States) on 16 March 1978, which included the following entries: * Item 9 (Marital Status) - married * Item 10 (Number of Dependents) – 3 * Item 26 (Military Service) – No prior service in the Regular, Reserve, or National Guard of the United States * Item 28a (Relatives) – father, mother, spouse, and two children * An additional entry was written in Item 28a “Other” but does not specify the relationship of the relative 6. The applicant enlisted in the Regular Army on 25 May 1978 for a 3-year period. He was awarded military occupational specialty (MOS) 91C (Clinical Specialist). The highest rank he attained was private (PV2). 7. The applicant was formally counseled on 29 November 1978 and 6 December 1978 for sleeping on duty and passing the wrong medication to a patient. 8. A handwritten statement to Sergeant Major (SGM) , Chief Wardmaster, dated 9 February 1979 stated [the applicant] refused to return to work on his assigned ward. He was sent to speak with someone from the New Direction Program, but the office was closed. He was ordered to work on a different ward over the weekend. The following day he failed to report for duty at the time prescribed. 9. A DD Form 2496 (Disposition Form), dated 12 February 1979, shows a ward staff nurse attempted to locate the applicant upon discovering he did not complete his duties in caring for a patient. The staff nurse attempted to contact [the applicant] but was unable to reach him. 10. On 12 February 1979, the applicant’s supervisor responded to an Inspector General Action Request and provided the following information, in effect: a. [The applicant] started working on Ward 2 East in September 1978. He was a 91C (Licensed Practical Nurse) but only a PV2. 2 East was a busy ward with a fifty-two- bed capacity. Many patients were considered “terminal.” They averaged no more than five deaths per month. b. [The applicant] was counseled several times for sleeping on duty, medication error, and scheduling complaints. c. [The applicant] never mentioned he was unable to deal with terminal patients. d. He was oriented more gradually than most new employees due to his lack of training. He was told to contact the charge nurse if passing medication for the ward was too much for him. He would be assigned the task of medicating half the ward or be given a less demanding job. When assigned a less demanding job, he was difficult to find and unreliable. e. He was given adequate opportunity to orient and adapt to the ward. The supervisor felt he could function on the ward, but he was unwilling to try. His behavior was a detriment to staff morale and optimum patient care. 11. An additional DA Form 2496, dated 12 February 1979, shows the Assistant Chief, Department of Nursing, recommended the applicant’s commander expeditiously separate the applicant for fraudulent entry. Further stating, the applicant demonstrated adjustment problems, serious medication errors, refusal to perform duties in assigned areas, and failure to repair. 12. On 14 February 1979, the applicant was relieved from duty in the Department of Nursing while pending separation for fraudulent enlistment. SGM further stated, his attitude, inflexibility, and inability to function as a clinical specialist precluded his further utilization within the department. 13. The applicant’s immediate commander notified the applicant on 16 February 1979 of his intent to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Section II, paragraph 14-4g, by reason of fraudulent entry. The commander cited the applicant’s concealment of the actual number of his dependents as the specific reason for the separation action. 14. The applicant consulted with counsel on 20 February 1979. He was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Section II, paragraph 14-4g, and its effect; of the rights available to him, and the effect of any action taken by him to waive his rights. He elected to provide a statement in his own behalf, wherein he stated, in effect: a. He held back information when he reenlisted because his recruiter told him the following: * having three children would eliminate him from serving * not to reveal his prior service because the Army would know he had three children * if he completed basic training and the Army discovered the information, he could be retained * if he produced his LPN license, he would receive an accelerated promotion to PFC and after 4 months, promotion to specialist/E-4 b. He had no formal disciplinary actions against him. Former supervisors had some unfavorable comments which were brought on by working hard without receiving what was promised, working on a ward which was totally depressive and foreign to him, and not having anyone to listen to him or show concern for him. c. He deserved an honorable discharge based upon his entire service record. He voluntarily revealed all fraudulent information to his first sergeant upon arrival at Fitzsimmons Army Medical Center. 15. The applicant’s immediate commander formally recommended his separation on 22 February 1979, under the provisions of Army Regulation 635-200, Section II, paragraph 14-4g, by reason of fraudulent entry. As the specific reasons, the commander noted the applicant’s failure to report his prior service in the NJARNG, and he only listed two of his three dependent children. Additionally, he did not display potential for successful military service. 16. The applicant underwent a mental status evaluation on 22 February 1979. The examining provider noted there was no impression of significant mental illness. The applicant met retention standards and was cleared to participate in administrative proceedings. 17. The applicant’s intermediate commander concurred with the recommended separation action on 26 February 1979. 18. The separation authority approved the recommended separation action on 5 March 1979. He directed the applicant’s fraudulent entry be voided under the provisions of Army Regulation 635-200, paragraph 14-5. 19. The applicant was released from military control on 8 March 1979 under the provisions of Army Regulation 635-200, Section II, Chapter 14, by reason of fraudulent entry. His DD Form 214 confirms his service was voided. He was not awarded any creditable service or a characterization of service. 20. The ABCMR reviewed the applicant’s request for an honorable discharge, credit for service, and back pay on 8 August 1979. After careful consideration, the Board determined there was a lack of sufficient evidence to demonstrate the existence of probable material error or injustice and denied his request. The Board noted that the applicant was promoted to specialist/E-4, effective 8 September 1978, in accordance with a directive from the ABCMR. 21. On 31 May 2022, the ABCMR reviewed the applicant’s request for correction of his DD Form 214, for the period ending 8 March 1979, to show an honorable characterization of service. A medical review determined there was no association between the applicant’s behavioral health conditions and the basis for his separation. After considering the basis for the misconduct and the findings and recommendations of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice. The Board denied the applicant’s request. 22. The applicant provides the following: a. 26 pages of military service records, dated 10 March 1969 to 5 March 1979, were summarized in the previous consideration of the applicant's case. b. In a statement of support, dated 14 April 2013, Mr. . states, in effect, he served with the applicant in the NJARNG. Prior to that, they attended grammar school and high school together. Mr. retired from the Army. After years as a Nuclear Biological Chemical Specialist, he suffers from cancer for which the VA will not accept responsibility. Both he and the applicant are victims of bureaucracy and red tape. They both put their lives on the line for their country. The applicant is an honest man who was manipulated by a slick recruiter. c. A funeral bulletin shows that Mr. passed away on 11 July 2013. d. A two page document titled “List of VA Contacted Offices,” shows all the organizations the applicant states he contacted for assistance with his discharge request. e. Two letters from MOFDAPS Comprehensive Behavioral Health Services show the applicant received treatment for multiple behavioral health conditions since 2015. f. A letter from the VA, dated 26 March 2021, provides a list of the applicant’s mental health diagnoses, which are as follows: * PTSD, chronic * Depressive disorder * Erectile dysfunction * Obesity secondary to depression 23. Regulatory guidance states an honorable characterization of service is appropriate when the quality of the member’s service has generally 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. 24. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 25. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his previous request for correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending on 8 March 1979, to show his characterization of service as honorable. He contends PTSD mitigates 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: * Applicant enlisted in the Army National Guard on 31 July 1968. He was called to active duty for the completion of his initial entry training. He was honorably released from active duty on 10 March 1969 and returned to the New Jersey Army National Guard (NJARNG). * Applicant was honorably discharged from the NJARNG on 18 February 1972 due to dependency of his wife and three children. * Applicant enlisted in the RA on 25 May 1978. * DA Form 2496, dated 12 February 1979, shows the Assistant Chief, Department of Nursing, recommended the applicant’s commander expeditiously separate the applicant for fraudulent entry. Further stating, the applicant demonstrated adjustment problems, serious medication errors, refusal to perform duties in assigned areas, and failure to repair. * 22 February 1979, under the provisions of Army Regulation 635-200, Section II, paragraph 14-4g, by reason of fraudulent entry. As the specific reasons, the commander noted the applicant’s failure to report his prior service in the NJARNG, and he only listed two of his three dependent children. Additionally, he did not display potential for successful military service. * The applicant was released from military control on 8 March 1979 under the provisions of Army Regulation 635-200, Section II, Chapter 14, by reason of fraudulent entry. His DD Form 214 confirms his service was voided. He was not awarded any creditable service or a characterization of service. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the ABCMR Record of Proceedings (ROP), DD Form 214, self-authored statement requesting reconsideration, statement of support, civilian treatment letters and documents from his service record and separation packet. 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. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant underwent a mental status evaluation on 22 February 1979. The examining provider noted there was no impression of significant mental illness. The applicant met retention standards and was cleared to participate in administrative proceedings. e. The applicant has been treated by a civilian provider and submitted two letters from MOFDAPS Comprehensive Behavioral Health Services. A letter dated 1 June 2015 from the provider diagnosed him with PTSD, Cannabis Dependence and Major Depressive Disorder. A second letter dated 27 September 2021 diagnosed him with PTSD, Major Depressive Disorder, and Mood disorder due to known physiological condition. This letter noted that the applicant has been treated by this provider for 8 years via medication management and was seen monthly. f. The VA electronic medical record indicates the applicant is 30% service connected for neurosis, effective date 17 February 2010, and has received care via the VA since August 2018. A letter from the VA to the applicant, dated 26 March 2021, lists his mental health diagnoses as follows, PTSD and Depressive disorder, chronic. In a C & P evaluation dated 09 March 2020, the applicant was diagnosed with Other specified trauma and stressor disorder since the applicant reported a valid stressor but not all symptoms of PTSD were found. During that evaluation, the applicant reported that while in boot camp during his induction into the National Guard, he was in the barracks when a group of three men were beating another man, who they ultimately sexually assaulted. A day or two later the victim threw himself through a glass window, the men were sent by the sergeant back to the barracks and an ambulance came and took the man away. He never reported what he witnessed and shared feeling guilt and shame about what happened. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence that the applicant had a behavioral health condition and experience during military service. However, his BH conditions do not mitigate the reason for his discharge. 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 a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant reports witnessing a brutal sexual assault while in military service and he is 30% service connected for neurosis. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The record indicates that the applicant likely had a BH condition and an experience that impacted him during military service. The applicant reports witnessing an MST and his record indicates he has been diagnosed with the following: PTSD, Cannabis Dependence, Major Depressive Disorder, Other specified trauma and stressor disorder as well as other diagnoses subsumed under these diagnoses. However, none of the applicant’s behavioral health conditions have a natural sequela with providing fraudulent information for personal gain, since none of his diagnoses interfere with his capacity to distinguish right from wrong and act in accordance with the right. As a result, his BH conditions do not provide mitigation for his misconduct. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding sufficient evidence that the applicant had a behavioral health condition and experience during military service. However, his behavioral health conditions do not mitigate the reason for his discharge. The medical opine noted, that none of the applicant’s behavioral health conditions have a natural sequela with providing fraudulent information for personal gain, since none of his diagnoses interfere with his capacity to distinguish right from wrong and act in accordance with the right. 2. The board agreed the applicant concealed that he had three dependent children at the time of his enlistment. The burden of proof lies on the applicant who stated his recruiter told him not to reveal his prior service because the Army would know he had three children and if he completed basic training and the Army discovered the information, he could be retained. Furthermore, the board found the applicant deliberately concealed information about his prior – and ongoing – enlistment. 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. Therefore, the Board denied relief. 3. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. 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 AR20210013909 on 31 May 2022. 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. Chapter 14, then in effect, pertaining to separation of an individual for misconduct/fraudulent entry, indicates fraud is the procurement of enlistment through any deliberate material misrepresentation, omission, or concealment which, if known, might have resulted in rejection. The regulation lists as cause for discharge for fraudulent entry as concealment of prior service, concealment of conviction by civil court, concealment of dependents or other disqualifications. The Commander could void an enlistment if fraudulent entry was involved and court-martial charges for that offense were not contemplated. b. Army Regulation 635-200, currently in effect, provides for separation for fraudulent entry based on concealment of prior service only if that service was terminated under other than honorable conditions. c. An honorable discharge is a separation with honor that 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. 3. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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 sexual assault or sexual harassment was unreported, or 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. 4. 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) AR20230001553 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1