IN THE CASE OF: BOARD DATE: 20 September 2023 DOCKET NUMBER: AR20230002483 APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his discharge under conditions other than honorable (UOTHC) to under honorable conditions (General). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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 AR20180007308 on 11 January 2021. As a new argument, the applicant indicates on his DD Form 149, that post-traumatic stress disorder (PTSD) is a mitigating factor in his petition. 2. The applicant states he is older now and knows what he did was wrong. At the time of his misconduct, he was twenty years old and losing his first son was too much pressure for him to bear without any help from the military. His discharge should be upgraded because he spent months at a time in the jungle and was exposed to killing, dead bodies, walking through bomb dust, and living like a pig on a daily basis. The pressure of his past also contributed to his wife's death. He asks for forgiveness so he can spend some time with his children and grandchildren. 3. After a thorough search, the applicant's complete service record could not be located. Therefore, this case is being considered with the limited documents. 4. After being granted a moral eligibility waiver for communicating threats and speeding, the applicant enlisted in the Regular Army for a period of three years on 25 July 1966. 5. Special Court-Martial Order Number 653, issued by Headquarters, U.S. Army Garrison, Fort Lewis, WA on 21 August 1967, shows the applicant was found guilty of one Specification of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) by, without proper authority, absenting himself from his unit on or about 8 May 1967 and remaining so absent until on or about 21 June 1967. He was sentenced to restriction for 30 days, and forfeiture of $37.00 pay for one month. The sentence was adjudged on 16 August 1967. The sentence was approved on 21 August 1967, the portion pertaining to restriction was suspended until 14 September 1967, at which time unless sooner vacated would be remitted without further action. 6. General Court-Martial Order (GCMO) Number 27, issued by Headquarters, U.S. Army Training Center, Infantry and Fort Lewis (Provisional), Fort Lewis, WA on 15 March 1968, shows the applicant was found guilty of two Specifications of violation of Article 86, of the UCMJ, for absenting himself from his unit on or about 21 October 1967 until on or about 30 October 1967; and on or about 10 November 1967 until on or about 14 November 1967. He was also found guilty of one Specification of violation of Article 121, of the UCMJ, for stealing an automobile, of a value of about $1,200.00, the property of a commissioned officer, on or about 10 November 1967. He was sentenced to be discharged from the service with a bad conduct discharge; to be confined at hard labor for two years; and forfeiture of two-thirds pay per month for 24 months. The sentence was adjudged on 25 January 1968. On 15 March 1968, only so much of the sentence as provided for a bad conduct discharge, forfeiture of $41.00 pay per month for 24 months, and confinement at hard labor for two years were approved. He was ordered to be confined at the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, KS 7. On 26 July 1968, the applicant requested restoration to duty in order to earn a discharge under honorable conditions. His request was disapproved on 18 September 1968. 8. GCMO Number 149, issued by Headquarters, U.S. Disciplinary Barracks Fort Leavenworth, KS on 26 September 1968, confirmed only so much of the sentence adjudged on 25 January 1968, as promulgated in GCMO Number 27, dated 15 March 1968, as provided for bad conduct discharge, forfeiture of $41.00 pay per month for 12 months, and confinement at hard labor for 12 months had been affirmed. Article 71(c) having been complied with, the sentence as thus modified, was ordered to be duly executed. 9. Special Order Number 204, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 10 October 1968, discharged the applicant by reason of conviction by General Court-Martial with a character of service of UOTHC, and issuance of a DD Form 259A (Bad Conduct Discharge). 10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, with a characterization of service of UOTHC. He completed 1 year, 1 month, and 22 days of net service during this period and was not awarded any decorations or medals. He did not complete his first full term of enlistment. He had time lost as follows: * 35 days, from 8 May 1967 through 11 June 1967 * 10 days, from 12 June 1967 through 21 June 1967 * 9 days, from 21 through 29 October 1967 * 336 days, from 14 November 1967 through 14 October 1968 11. He did not qualify to have his discharge reviewed by the Army Discharge Review Board because his conviction was by a general court-martial. 12. Army Regulation 635-200, provides a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 13. By law, court-martial convictions stand as adjudged or modified by appeal through the judicial process. This Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. The ABCMR does not have authority to set aside a conviction by a court-martial. 14. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. He contends he had PTSD that mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 25 July 1966; 2) Special Court-Martial Order on 21 August 1967, shows the applicant was found guilty of going AWOL 8 May-21 June 1967; 3) General Court-Martial Order on 15 March 1968, shows the applicant was found guilty of going AWOL 21-30 October 1967 and 10-14 November 1967. He was also found guilty of stealing an automobile of a commissioned officer on 10 November 1967; 4) The applicant was discharged on 10 October 1968, by General Court-Martial with a character of service of UOTHC, and issuance of a DD Form 259A (Bad Conduct Discharge). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional hardcopy medical documentation was provided. d. On his application, the applicant noted PTSD is related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. There is insufficient evidence the applicant deployed to a combat environment or was diagnosed with PTSD during his military service. A review of JLV was void of any behavioral health documentation. The applicant receives no service-connected disability. The applicant did not provide any civilian medical documentation indicating he has been diagnosed with PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing a PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a PTSD while on active service. The applicant did go AWOL, which can be a sequalae to PTSD, but this is not sufficient to establish a history of a condition during active service. In addition, there is no nexus between PTSD and theft of an automobile. However, the applicant contends he was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for 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 condition or experience that mitigated his misconduct. As noted in the opine, the Board determined there is insufficient evidence beyond self-report the applicant was experiencing a PTSD while on active service. The applicant did go AWOL, which can be a sequalae to PTSD, but this is not sufficient to establish a history of a condition during active service. In addition, there is no nexus between PTSD and theft of an automobile. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. 2. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support to attest to his honorable conduct that might have mitigated the discharge characterization. ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 1 month, and 22 days of net service during this period. The Board determined 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 under honorable discharge. Therefore, the Board found reversal on the previous board decision is without merit and 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 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 AR20180007308 on 11 January 2021. 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. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552(b); however, the 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. Title 10, USC, 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, Title 10, USC, Section 1552, this Board is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. The ABCMR does not have authority to set aside a conviction by a court-martial. 4. Title 10, U.S. Code, Section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 6. Army Regulation 635-200, in effect at the time, established policy and prescribed procedures for the elimination of enlisted personnel for a variety of reasons. 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. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. d. Chapter 11 provided that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. 7. The Manual for Courts-Martial United States (2012 Edition) consist of the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the Punitive Articles, and Nonjudicial Punishment Procedures and should be consistently applied with the purpose of military law. a. Rule 706 (Inquiry into the mental capacity or mental responsibility of the accused). If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule. b. Article 71(c) of the UCMJ stipulates that if a sentence extends to death, dismissal, or dishonorable or bad-conduct discharge and if the right of the accused to appellate review is not waived and an appeal is not withdrawn, that part of the sentence extending to death, dismissal, or a dishonorable or bad-conduct discharge may not be executed until there is final judgment as to the legality of the proceedings. A judgement as to legality of the proceedings is final in such cases when review is completed by a Court of Military Review. 8. 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 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. 9. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 10. 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. 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 based on 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. 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) AR20230002483 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1