IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230001571 APPLICANT REQUESTS: * In effect, upgrade his general discharge under honorable conditions * Restore his rank/grade from private (PV2)/E-2 to specialist four (SP4)/E-4 by, in effect, setting aside nonjudicial punishments (NJP) he received under Article 15, Uniform Code of Military Justice (UCMJ) * Correct his DD Form 214 (Report of Separation from Active Duty) to show the award of the Expert Infantryman Badge and "Jungle Expert Badge" * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, he would like his rank restored so that his grave marker will show SP4 instead of PV2; he also asks that his DD Form 214 reflect his already-awarded Expert Infantryman and "Jungle Expert" badges. a. The applicant believes he lost his rank as a result of command retaliation after he terminated his "jump status." In support of his requests, he provides a copy of his DD Form 214. b. Additionally, the applicant has checked the following blocks in item 13 (Are Any of the Following Issues/Conditions Related to Your Request) of his DD Form 149: PTSD (post-traumatic stress disorder) and Other Mental Health issues. He offers no further explanation or supporting documentary evidence. 3. According to Army Regulation (AR) 672-5-1 (Military Awards), in effect during the applicant's era of service, the Army did not have an award titled, "Jungle Expert Badge"; as such, that part of the applicant's request will not be further addressed. 4. A review of the applicant's service record reveals the following: a. On 10 July 1972, after obtaining his guardian's permission, the applicant enlisted into the Regular Army for 4 years; he was 17-year-old. Following the completion of initial entry and airborne training and the award of military occupational specialty 11B (Infantryman), orders assigned the applicant to Company B of an airborne infantry battalion at Fort Bragg, NC (recently renamed Fort Liberty); he arrived at his new unit, on or about 5 November 1972. b. On 26 February 1973, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for having been absent without leave (AWOL) from 20 to 23 February 1973 (3 days). At some point prior to October 1973. the applicant's leadership promoted him to private first class (PFC)/E-3. On 30 October 1973, the applicant accepted NJP for missing movement; punishment included a suspended reduction to PV2. c. On 1 April 1974, the applicant accepted NJP for willful disobedience of his commander's order to attend a remedial driver's course. Effective 1 July 1974, the applicant's chain of command promoted him to SP4. Effective 29 November 1974, the applicant's command directed his rehabilitative transfer to the battalion's Company A. d. On 10 July 1975, the applicant accepted NJP for an unauthorized absence and the willful disobedience of a commissioned officer's order; punishment included his reduction from SP4 to PFC. e. On 17 July 1975, the applicant's commander advised him, via memorandum, of his intent to initiate separation action against the applicant, under the provisions of paragraph 13-5b (3) (Unsuitability – Apathy), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons were the applicant's "apathy, defective attitudes, and inability to expend effort constructively." f. On an unknown date, after consulting with counsel (a Judge Advocate General officer), the applicant acknowledged counsel had informed him of the basis for the separation action, and the applicant waived his right to personally appear before a board of officers with counsel. Additionally, the applicant waived his right to counsel and elected not to submit statements in his own behalf. g. On 17 July 1975, the applicant's commander submitted his separation recommendation; he stated his reasons were the applicant's defective attitudes and his inability to expend effort constructively, in that the applicant was frequently involved in discreditable incidents. The commander added that, while assigned to his unit, the applicant's duty performance had been unsatisfactory, and the applicant's military superiors all agreed that further rehabilitative efforts would be useless. Noting the applicant had already received one rehabilitative transfer, the commander requested the separation authority waive any further transfers. h. On 7 August 1975, the applicant accepted NJP for disrespectful behavior toward a superior commissioned officer. The imposing commander directed the applicant's reduction to PV2; (the associated DA Form 2627 is unavailable for review). On 2 September 1975, the applicant's commander-initiated bar to reenlistment action against the applicant, based on the applicant's NJP actions; the applicant affirmed his commander had provided him a copy of the bar action but indicated he would not be providing a statement in his own behalf. i.. On 3 September 1975, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions. On 10 September 1975, the applicant accepted NJP for two specifications of failing to report for company formation. On 10 September 1975, the applicant's brigade commander approved the company commander's bar to reenlistment request. j. On 3 October 1975, orders separated the applicant with a general discharge under honorable conditions; his DD Form 214 shows he completed 3 years, 2 months, and 29 days of his 4-year enlistment contract, with 15 days of lost time. (1) Items 6a (Grade, Rate, or Rank) and 6b (Pay Grade) state, "PV2" and "E2"; item 7 (Date of Rank) shows 7 August 1975. (2) Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the National Defense Service Medal, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16); a handwritten entry in item 26 states, "Expert Infantry." k. The applicant's service records are void of orders awarding the Expert Infantryman Badge; in addition, item 9 (Awards, Decorations, and Campaigns) of his DA Form 2-1 (Personnel Qualification Record – Part II) does not reflect the Expert Infantryman Badge. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. In addition, the ABCMR is not an investigative body, and the applicant has the burden of proving the existence of an error or injustice through providing a preponderance of evidence (meaning the evidence is sufficient for the Board to find that there is a greater than 50 percent chance (i.e., more likely than not) that an applicant's claims are correct). 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, the applicant's available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. Background: The applicant is requesting to upgrade his general discharge under honorable conditions, to restore his rank, and to correct his DD Form 214. The applicant asserts that other mental health and PTSD mitigate his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * Applicant enlisted into the RA on 10 July 1972, at the age of 17, and with his parents’ permission. * On 26 February 1973, the applicant accepted nonjudicial punishment (NJP) for having been absent without leave (AWOL) from 20 to 23 February 1973 (3 days). * On 30 October 1973, the applicant accepted NJP for missing movement. * On 1 April 1974, the applicant accepted NJP for willful disobedience of his commander's order to attend a remedial driver's course. * On 10 July 1975, the applicant accepted NJP for an unauthorized absence and the willful disobedience of a commissioned officer's order. * On 17 July 1975, the applicant's commander advised him of his intent to initiate separation action against the applicant, under AR 635-200, paragraph 13-5b (3) (Unsuitability – Apathy. The reasons were the applicant's "apathy, defective attitudes, and inability to expend effort constructively." * On 7 August 1975, the applicant accepted NJP for disrespectful behavior toward a superior commissioned officer. * On 2 September 1975, the applicant's commander-initiated bar to reenlistment action against the applicant, based on the applicant's NJP actions. * The applicant was discharged on 3 October 1975 with a general discharge under honorable conditions. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), and DD 214, as well as documents from his service record and separation. 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. The applicant asserts that PTSD and other mental health mitigate his discharge, and he is requesting an upgrade of his characterization of service, as well as a restoration of his rank and for his DD Form 214 to reflect two badges he asserts he earned. This advisor will speak to the request for consideration of an upgrade. The NJPs leading up to him being separated included being AWOL, missing movement, willful disobedience, disobeying direct order, and disrespectful behavior toward a superior commissioned officer. There were no military medical records provided to support his assertion of PTSD, nor any other mental health condition. His EHR is also void of any mental health encounters from his time in Army, though that is to be expected given the era of service. d. Since the applicant’s discharge, he has engaged in care at the VA. He initiated mental health care starting in 2011 and has remained consistently engaged since. The applicant is not service connected for any mental health conditions, though is 60% service connected for numerous physical health concerns. Of note, there is no evidence he has ever had a compensation and pension evaluation for mental health (hence, his assertion of mental health concerns being related to his service have not been assessed and not supported; it just appears he’s never attempted). He has been diagnosed with several mental health conditions to include PTSD, unspecified; anxiety disorder, unspecified; major depressive disorder, recurrent, moderate (MDD); adjustment disorder with depressed mood; unspecified mood disorder; and unspecified symptoms and signs involving cognitive functions and awareness. The applicant has engaged in group and individual therapy, and medication management. e. There were numerous encounters in his record that provided important context to his assertions. A comprehensive mental status evaluation was uploaded 15 November 2010 into his scanned documents. It was a disability evaluation, though it does not appear to be a compensation and pension exam through the VA, but instead a state required disability determination. During this evaluation he reported nightmares about jumping out of airplanes secondary to a bad experience (“some type of parachute incident when he was in the military in 1975). He also noted issues with his “emotional state since the 1970s.” During this evaluation he was diagnosed with MDD, recurrent, moderate and “symptoms of PTSD without meeting full criteria.” His first recorded mental health evaluation with the VA was 4 February 2011. At that time, he reported nightmares involving his parachute. He reported that he’d been injured while parachuting (dislocated shoulder), was on limited duty for a few weeks, and this changed “everything” in his military career. He also relayed being a passenger in a moving vehicle accident (MVA) in April 1975, where an officer who had switched spots with him was killed. He noted during this evaluation that his only other mental health care had been about 30 years prior, during his divorce, where he engaged in counseling for 6 months. On 17 December 2019, the applicant participated in a psychodiagnostics evaluation to help with diagnostic clarification. During this evaluation he was found to meet diagnostic criteria for PTSD based on a 2009 event (his son was murdered). The applicant also met diagnostic criteria for MDD. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is no evidence from his time in service to suggest he had a mental health disorder, however there are no medical records available for review. There is, however, sufficient evidence since his time in service that the applicant likely experienced at least two potentially traumatic events during his time in service, and has since been diagnosed with several potentially mitigating mental health conditions (depression, anxiety and PTSD). 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 asserts PTSD and other mental health mitigate his discharge. (2) Did the condition exist or experience occur during military service? Unknown. The applicant does not specify in his application when he experienced PTSD or other mental health concerns. However, his medical records indicate his mental health issues began while in the service and secondary to at least two potentially traumatic events. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD and other mental health. There is no available evidence for review, beyond self-report, that the applicant had a mitigating condition during his time in service, though this is not uncommon given the lack of electronic health records at that time, nor the length of time since his service. Also, there is sufficient evidence that the applicant has experienced significant mental health concerns since his time in service, with him consistently reporting during evaluations spanning over a decade, that his mental health concerns started in the Army. In his application he noted feeling like he was reduced in rank as reprisal for terminating his jump status. In his assessment from 2010, he reported a bad jump leading to injury and this event changing his career. This suggests the applicant developed significant worry or fear around parachuting, and this is further corroborated by years of him reporting sleep issues and nightmares about parachuting. Without further information from his time in service, it is impossible to know if he met all criteria for PTSD, though it is clear he was experiencing some posttraumatic symptoms. He had not received a full PTSD diagnosis until 2019, which was related to the murder of his son. As stated, though, posttraumatic symptoms have been evident throughout medical record, more likely than not stem from his time in service and were likely exacerbated by the death of his son. g. It’s important to note, going AWOL and charges similar to failure to report (missing movement, not following orders to attend a training, etc.) are avoidance behaviors consistent with the natural history and sequelae of trauma, depression and anxiety. “Apathy,” “defective attitudes” reduced effort and even disrespectful behavior, while not justified, are also consistent with increased agitation or irritability, and depressed mood, also consistent with a trauma, depression and anxiety. There is a nexus between his reported mitigating conditions and the misconduct that led to his discharge. Per Liberal Consideration guidelines, his assertion alone is worthy of consideration by the Board and based on the information available, this Agency Behavioral Health Advisor would recommend mitigation. 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 no evidence from his time in service to suggest he had a mental health disorder, however there are no medical records available for review. The Board determined there were no military medical records provided to support his assertion of PTSD, nor any other mental health condition. His EHR is also void of any mental health encounters from his time in Army. However, during deliberation, the Board recognized the medical opine finding a nexus between his reported mitigating conditions and the misconduct that led to his discharge. Additionally, noting there was sufficient evidence since his time in service that the applicant likely experienced at least two potentially traumatic events during his time in service and has since been diagnosed with several potentially mitigating mental health conditions (depression, anxiety and PTSD). 2. The Board determined without further information from his time in service, it is impossible to know if he met all criteria for PTSD, though it is clear to the Board he was experiencing some posttraumatic symptoms. He had not received a full PTSD diagnosis until 2019, which was related to the murder of his son. Based on the preponderance of evidence the Board determined there was insufficient evidence to substantiate the applicant’s assertion that his mental health issues were service connected. The applicant provided no post service achievements or character letters of support to attest his honorable conduct for the Board to weigh as a clemency determination. The applicant was discharged and provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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 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. REFERENCES: 1. Title 10, USC, 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, United State Code, section 1556 (Ex Parte Communications Prohibited) 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. 3. AR 635-200 prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Separation authorities should condition the issuance of an honorable discharge on proper military behavior and proficient duty performance. A separation authority could characterize a Soldier's service as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; the Soldier could not have any general courts-martial, and the regulation allowed no more than one special court-martial conviction. b. Chapter 13 (Separation for Unfitness or Unsuitability) applied to Soldiers found to be unfit or unsuitable for military service. Paragraph 13-5b (3), AR 635-200 permitted commanders to separate Soldiers who displayed an apathetic lack of interest, defective attitudes, and/or the inability to expend effort constructively. Separation authorities could issue Soldiers separated per this provision either an honorable or a general discharge. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions, 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 former Soldier'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. 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, BCM/NRs 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. 7. AR 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice and implemented the Manual for Courts-Martial. Paragraph 3-20 (Setting Aside and Restoration) stated NJP punishment was set aside and property. privileges, and rights restored when it was determined the punishment had resulted in a clear injustice. Later versions of the regulation defined, "clear injustice" as the existence of an unwaived legal or factual error that clearly and affirmatively injured the Soldier's substantial rights; for example, when new evidence proved the Soldier did not commit the crime alleged. Uncorroborated claims were an insufficient basis to set aside a punishment. 8. AR 672-5-1, in effect at the time, prescribed policies and procedures for military awards. In paragraph 5-9 (Expert Infantryman Badge), it stated, for eligibility, an individual had to be an infantry officer or enlisted man with an infantry MOS who had satisfactorily completed the proficiency test prescribed by Army regulations while assigned to an infantry unit of brigade size or smaller. Commanders of Active Army divisions, separate brigades, and comparably sized units are authorized to grant this award. 9. AR 672-12 (Expert Infantryman Badge Test), in effect at the time, outlined the specific test requirements for the award of the Expert Infantryman Badge. The award was to be announced in unit orders citing AR 672-12 as its authority. 10. AR 15-185 states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001571 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1