IN THE CASE OF:    
 
  BOARD DATE:  12 September 2023 
 
  DOCKET NUMBER:  AR20230001998 
 
 
APPLICANT REQUESTS:  Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:   
 
• DD Form 293 (Application for the Review of Discharge), dated 21 October 2022 

• DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 31 August 1967 

• Excerpt copy of Service Treatment Record 

• Veteran Service Officer (VSO), Letter dated 24 October 2022 


 
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 AR20090013932 on 28 January 2010.  
 
2.  The applicant states in effect, while he was enlisted, he was assaulted by an individual resulting in a traumatic brain injury (TBI). When he was hit over the head with a rifle to the point that he was unconscious and hospitalized. After this incident he did not feel safe and was constantly being harassed and hazed by other Soldiers. Due to the harassment, he felt he had no other option other than going absent without leave (AWOL). After having time to think about it, he decided to turn himself in and was made to sign paperwork to be discharged. The paperwork put all the blame on him. even after he informed the command of his treatment, there was no follow up with those harassing him. His command failed him. Instead of sending him to counseling, they got rid of him as soon as possible.  
 
3.  On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD), TBI, other mental health issues, and harassment as being related to his request.  
 
4.  On 20 April 1966, the applicant enlisted in the Regular Army for a 3-year service obligation.  
 
5.  The applicant provides a Standard Form 600 (Chronological Record of Medical Care), dated 15 June 1966, which indicates during training at Fort Polk, LA, he was struck on the side of the head with the butt of a rifle and knocked unconscious. He was screened at the Fort Polk emergency room the same day, his cranium was intact, and he was fully alert. 
 
6.  Upon completion of training and award of military occupational specialty 11B (Light Weapons Infantryman), he was assigned to Fort Benning, GA, where he completed the basic airborne course. Subsequently, he was assigned to Fort Campbell, KY. 
 
7.  On 18 November 1966, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for going AWOL from on or about 2 November 1966 until 3 November 1966. His punishment included forfeiture of $10 pay and seven days extra duty.  
 
8.  On 18 January 1967, the applicant underwent a mental status evaluation. The examining psychiatrist diagnosed him with an immature personality, chronic, severe, manifested by negativism, hostile aggressive attitudes, and impulsive behavior. Stress, none, routine military duty. The provider noted the applicant was able to distinguish right from wrong but had characterological difficulties, which made effective military duty, unlikely. He did not have a mental illness that qualified him for separation through medical channels. The examining physician recommended expeditious discharge. 
 
9.  On 30 January 1967, the applicant was found guilty by a summary court-martial for failing to go at the prescribed time to his appointed place of duty, on or about 20 January 1967. His sentence included reduction to E-2 and forfeiture of $50 pay. The sentence was approved on 31 January 1967.  
 
10.  On 7 July 1967, the applicant was found guilty by a special court-martial of being AWOL from on or about 3 February 1967 through 28 June 1967. His sentence included reduction to E-1, forfeiture of $64 pay for six months, and six months confinement at hard labor. The sentence was approved on 28 July 1967. 
 
11.  On 10 July 1967, the applicant completed a medical history. The corresponding documentation shows he stated he was hit in the head during hand-to-hand combat training in basic training, which knocked him unconscious, and he lost memory for a few minutes; later he was hospitalized for tonsilitis.  
 
12.  The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 
 
 
13.  On 31 August 1967, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in the lowest enlisted grade with Separation Program Number 28B by reason of unfitness. His service was characterized as UOTHC. He was credited with completing 9 months and 1 day of net active service this period, with three periods of lost time. 
 
14.  On 28 January 2010, the ABCMR considered the applicant’s petition for upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged and denied his request.  
 
15.  On 9 May 2023, in the processing of this case the U.S. Army Criminal Investigation Division, searched their criminal file indexes, which revealed no Criminal Investigative and/or Military Police Reports pertaining to the applicant.  
 
16.  The applicant provides excerpts of his service treatment records as summarized above and a VSO letter requesting a review of his discharge.  
 
17.  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.  
 
18.  MEDICAL REVIEW:   
 
    a.  Background: The applicant is requesting reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. The applicant asserts PTSD, other mental health, and TBI as factors in his misconduct and 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 Regular Army 20 April 1966. 

• He received a head injury, was knocked unconscious and was seen at the hospital on 15 June 1966.  

• On 18 November 1966, the applicant accepted non-judicial punishment for going AWOL from on or about 2 November 1966 until 3 November 1966.  

• Was seen for a psychiatric evaluation on 13 January 1967 where a separation under AR 635-212 was strongly recommended by the psychiatrist.  

• On 30 January 1967, the applicant was found guilty by a summary court-martial for failing to go at the prescribed time to his appointed place of duty, on or about 20 January 1967.  


• On 7 July 1967, the applicant was found guilty by a special court-martial of being AWOL from on or about 3 February 1967 through 28 June 1967.  

• The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. 

• On 31 August 1967, the applicant was discharged under AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) with his service characterized as UOTHC.  

• On 28 January 2010, the ABCMR denied his request for upgrade.  


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 293, ABCMR Record of Proceedings (ROP), excerpt copy of his Service Treatment Record (STR), VSO letter, DD Form 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), though minimal data was available. Lack of citation or discussion in this section should not be interpreted as lack of consideration.  
 
    d.  The applicant asserted that PTSD, other mental health and TBI are mitigating factors in his discharge. The applicant reported that he was assaulted by an individual which resulted in the TBI (hit in the head with a rifle, was knocked unconscious and hospitalized). He noted after his incident, he continued to be harassed and hazed by other soldiers in his unit. He noted going AWOL after this, feeling like it was his only option. He noted he returned after getting the opportunity to talk it out, only for command to put all of the blame on him. He asserts that his command failed him, instead of supporting him or getting him counseling, they “got rid” of him.  No medical or mental health records were available from his time in service in his electronic health record (EHR), which is to be expected given his years of service. Hard copies of his service treatment record (STR) were provided for review. In an STR dated 15 June 1966, there is a record that he was seen in the emergency room after being hit over the head with a rifle butt and knocked unconscious. On 4 November 1966 there is a note of “acute anxiety reaction” and an immediate psych eval was noted (the eval was not found in his record). In his Report of Medical History note from 10 July 1967, frequent trouble sleeping, frequent nightmares, and nervous trouble of any sort were all endorsed. He also reported being a patient in a mental hospital or sanitorium, and in the notes section he stated he was sent by a doctor at Fort Campbell, KY in January of 1967. A record of this engagement was found in his STR, dated 13 January 1967. While there, the applicant appears to have participated in a mental status exam or psychiatric assessment, though the documents are difficult to read/review. At the time of admission, he was described as being depressed, having frequent crying spells, initial insomnia, lack of energy and apparent difficulty adjusting. Per his unit, he was a good solider but “exhibited excessive dependency on his home and appeared to get homesick.” It appears the applicant is listed as being diagnosed with Immature Personality, chronic, severe, manifested by negative, hostile, aggressive attitudes and impulsive behavior. It 
was noted that his stress was “none, routine military duty,” predisposition was noted as “strong family attachment and long-standing history of difficulty with the military,” and impairment was listed as “moderate for further military duty.” He was found to be competent, knew the difference between right and wrong and could adhere to the right, and was mentally responsible for his acts. There was no defect or disease that warranted an appearance before a PEB or other disposition through medical channels. While the evaluating psychiatrist noted that the disposition decision rested with command, he recommended that the application be “expeditiously separated from the military under provisions of AR 635-212. Of note, the applicant appears to have had a failure to report and to have gone AWOL after his stay in the hospital. Command did not follow through on these recommendations until after two more episodes of misconduct (failure to report and AWOL).   
    e.  Per the applicant’s VA EHR, he is not service connected with compensation. However, there is a Department of VA VBA administrative decision letter (11 December 2019) in his EHR scanned documents that show he has been service connected for “treatment purposes only” for “unspecified neurocognitive disorder (claimed as major depressive disorder, anxiety disorder, depression, sleep disorder, dementia and bipolar disorder).” He has had minimal engagement with the VA, and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits and was only service connected for treatment purposes only in 2019. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available that were able to provide basic information, such as diagnoses. In his most recent summary, there is a list of conditions listed under medical history to include depression and anxiety but there are no further details nor date of diagnoses. In a previous care summary, additional conditions were listed to include bipolar disorder, paranoia, mood swings, psychosis and PTSD.  
    f.  Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. This applicant’s full separation packet is missing, but based on court martial charges just prior to separation, this advisor presumes this documentation accurately reflects his misconduct leading to discharge. This advisor, with caution, will provide an opine based on the available information.  
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, other mental health and TBI.   
 
    (2)  Did the condition exist or experience occur during military service? Yes, the applicant asserts a mitigating condition or experience occurred during his time in service.  
 
    (3)  Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserted PTSD, other mental health and TBI mitigated his discharge. There is insufficient evidence he experienced PTSD during his time in service, though he has been diagnosed with it since. However, there is sufficient evidence that the applicant experienced other mental health conditions during his time in service (evidence of anxiety, depression and insomnia and was diagnosed with a personality disorder). In addition, his STRs support that he received a head trauma while serving and has since been service connected for treatment purposes only for unspecified neurocognitive disorder. While he was not formally diagnosed with a TBI at the time, records indicate he was hospitalized while in the military following a blow to the head. The VA deemed it was a least as likely as not (50% or greater) that the diagnosis of dementia was caused by a traumatic brain injury incurred while in the military. This is the same incident that he sites as being his reason for going AWOL. Going AWOL, and failure to report, are avoidance behaviors, consistent with trauma exposure. Avoidance behaviors are also part of the natural history and sequalae of numerous mental health concerns, to include his asserted PTSD as well as his evidenced anxiety and depression. Hence, there is a nexus between his symptoms/experiences and the AWOL and failure to report that led to his discharge. The applicant’s basis for separation is medically mitigated and accordingly, an upgrade is recommended. 
 
BOARD DISCUSSION:   
 
After reviewing the application and all supporting documents, the Board found that relief was partially warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The facts and circumstances surrounding his separation are not available. However, his DD Form 214 shows he was discharged from active duty for unfitness, following one instance of NJP and two court-martial convictions. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board reviewed and was persuaded by the medical official’s finding sufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. Based on a preponderance of evidence, the Board determined that the applicant’s service clearly did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests.  
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
xx: xx: xx: GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20090013932 on 28 January 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 31 August 1967 showing his character of service as Under Honorable Conditions, General. 
 
• Separation Authority: No Change 

• Separation Code: No Change 

• Reentry Code: No Change 

• Narrative Reason for Separation: No Change 


 
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable. 
 
  9/12/2023

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
 
REFERENCES:   
 
1.  Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute.  
 
2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates.  
 
a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.  
 
b.  A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 
3.  Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued.  
 
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 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 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.  
 
6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  
 
a.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  
 
b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.  
 
//NOTHING FOLLOWS//