IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002015 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) 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 that after years of injustice, he believes he deserves benefits from the Department of Veterans Affairs and a discharge upgrade because of his years of service. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. On 13 August 1969, the applicant enlisted in the Regular Army, for 3 years. 5. On 3 November 1969, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for feigning blindness, for the purpose of reducing his enlistment commitment by one year, on or about 20 October 1969. His punishment included forfeiture of $45.00, 20 days restriction, and extra duty. 6. On 26 January 1970, the applicant accepted NJP under Article 15 of the UCMJ, for going absent without leave from on or about 5 January 1970 until on or about 23 January 1970. His punishment included forfeiture of $63.00 per month for two months. 7. On 19 June 1970, the applicant accepted NJP under Article 15 of the UCMJ, for wrongfully having in his possession, with the intent to deceive, an official military sick slip, on or about 17 June 1970. His punishment included reduction to E-1, forfeiture of $25.00 per month for one month, and 14 days restriction and extra duty. 8. On 10 July 1970, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty and for being disrespectful in language towards a noncommissioned officer, on or about 4 July 1970. His punishment included forfeiture of $50.00 per month for two months, and 30 days extra duty. 9. On 25 July 1970, the applicant accepted NJP under Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 23 July 1970 and on or about 24 July 1970. His punishment included an oral reprimand and 14 days restriction. 10. On 5 August 1970, the applicant underwent a psychiatric evaluation. He was diagnosed with a severe character and behavior disorder that was not amiable to treatment within the military. He was psychiatrically cleared for administrative action and the examining psychiatrist recommended he be separated under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 11. Court-martial charges were preferred against the applicant on 5 August 1970 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with breaking restriction, on or about 2 August 1970; being disrespectful in language towards his superior noncommissioned officer, on or about 4 August 1970; and failing to go at the time prescribed to his appointed place of duty, on or about 5 August, 6 August, 7 August, and 8 August 1970. 12. The applicant consulted with legal counsel on or about 21 August 1970, and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an undesirable discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He declined to submit a statement in his own behalf. 13. On 12 October 1970, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635- 200, Chapter 10, he directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 26 October 1970. His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number 246 (for the good of the service – in lieu of trial by court-martial). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 1 month, and 26 days of net active service this period with 18 days of lost time. 15. The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 12 January 1984, the Board voted to deny relief and determined that his discharge was both proper and equitable. 16. On 17 March 2023, the ABCMR staff requested the applicant provide medical documents to support his PTSD and other mental health issues. He was advised that he could contact the doctor that diagnosed him or his VA regional office for assistance. He did not respond. 17. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 18. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 19. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. The applicant asserts PTSD and “other mental health” as related to his request for 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 on 13 August 1969. * On 3 November 1969, the applicant received non-judicial punishment (NJP) for feigning color blindness, for the purpose of reducing his enlistment commitment by one year, on or about 20 October 1969. * On 26 January 1970, the applicant accepted NJP for going absent without leave from on or about 5 January 1970 until on or about 23 January 1970. * On 19 June 1970, the applicant accepted NJP for wrongfully having in his possession, with the intent to deceive, an official military sick slip, on or about 17 June 1970. * On 10 July 1970, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty and for being disrespectful in language towards a noncommissioned officer, on or about 4 July 1970. * On 25 July 1970, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty, on or about 23 July 1970 and on or about 24 July 1970. * Court-martial charges were preferred against the applicant on 5 August 1970 for breaking restriction, on or about 2 August 1970; being disrespectful in language towards his superior noncommissioned officer, on or about 4 August 1970; and failing to go at the time prescribed to his appointed place of duty, on or about 5 August, 6 August, 7 August, and 8 August 1970. * On 21 August 1970, the applicant voluntarily requested discharge under AR 635- 200, Chapter 10, for the good of the service-in lieu of trial by court-martial. The request was approved. * The applicant was discharged on 26 October 1970 with an UOTHC characterization of service. * The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 12 January 1984, the Board voted to deny relief and determined that his discharge was both proper and equitable. 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), his 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). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserted that PTSD and “other mental health” are related to his request for upgrade. He also asserted that after all of these years of injustice, he believes he deserves an upgrade and to receive benefits from the VA. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). However, the applicant was referred for a psychiatric evaluation and was seen on 5 August 1970, with the report being present as part of his service record/separation. The provider diagnosed him with Emotionally Immature Personality, with Passive Aggressive Features, Severe (not a diagnosis recognized by the DSM-V). He was described as having difficulty with controlling his emotions under stress (in the Army and civilian life). The report noted hostility towards the Army and that he projects these feelings toward anyone in an authority figure. At the time of the evaluation, he openly admitted to not being motivated to change and was willing to accept any type of discharge. He was not found to be amenable to treatment. He was not found to have any other psychiatric condition outside of the severe character and behavior disorder. It was also recommended that it was in the best interest of the military and the individual that he be separated under AR 635-212. He was psychiatrically cleared for separation under the provisions of AR 635-212. No other medical or mental health records were provided. There is insufficient evidence that the applicant was ever diagnosed or treated for a potentially mitigating condition. e. Per the applicant’s VA EHR, he is not service connected. He holds no mitigating mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Though, he has been engaged with case management for housing support since 2021 (Grant Per Diem, VASH, etc), and has been diagnosed with homelessness and problems related to housing and economic circumstances. During his initial intake with Grant Per Diem 5 May 2021, he reported a history of being diagnosed with PTSD and bipolar disorder, and that he was on medication. However, no other details were given about etiology of his diagnoses, nor how long he’d been experiencing these concerns. Per his most recent encounter with his VA case manager (17 August 2023), he receives psychiatric care through his Family Health Center’s provider, however no further data was available. Through review of JLV, this applicant did not have any “Community Health Summaries and Documents” available. No other medical records were provided. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated 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 PTSD and “other mental health” are related to his request for upgrade. (2) Did the condition exist or experience occur during military service? Unclear, the applicant did not specify. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserted PTSD and “other mental health” as related to his request for upgrade. There is no evidence that the applicant had a mitigating mental health condition during his time in service. There is evidence of a “severe character and behavior disorder,” and while the provider’s description does not exist in our current diagnostic manual, he appeared to be describing a potential personality disorder. The applicant could have been discharged under AR 635-200 as recommended, though this likely would not have changed his characterization of service given all of his misconduct charges. There is self-reported evidence to the VA that he has been diagnosed with bipolar disorder and PTSD, however neither of those diagnoses have been given from the VA, nor is he service connected. Again, there is insufficient evidence the applicant was experiencing a mitigating mental health condition at the time of service, as personality disorders, or significant personality traits, are not mitigating. g. Of note, AWOL, failure to report and finding ways to avoid work, and disrespectful behavior, could all be behaviors consistent with several mental health conditions, to include a mood disorder (like bipolar disorder) or PTSD. However, they are also consistent with antisocial personality disorder (behavior the assessing provider referenced). Regardless, his pattern of misconduct is not sufficient to establish a history of PTSD or bipolar disorder. In summary, there is no evidence outside of self-report that supports the applicant had a mitigating condition at the time of service. However, per Liberal Consideration, his contention is sufficient to warrant the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, 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 insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated his discharge. The Board noted the medical opine found insufficient evidence that the applicant had a mitigating mental health condition during his time in service. Further, there is no evidence outside of self-report that supports the applicant had a mitigating condition at the time of service. 2. The Board determined there is insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. The applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. During deliberation, the Board found the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 1 month, and 26 days of net active service this period with 18 days of lost time. The Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to a general discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The 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, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy 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. 5. 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. 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// ABCMR Record of Proceedings (cont) AR20230002015 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1