IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002595 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) for the period ending 24 November 1975 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 he used alcohol to cope with stress while stationed in Germany. He has been sober since his discharge and is trying to get his life back on track. He would like to apply for housing as he has been homeless in the past. He notes other mental health as a condition related to his request. 3. The applicant enlisted in the Regular Army on 18 October 1974 for a 3-year period. The highest rank he attained was private/E-2. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on five occasions: a. On 13 February 1975, for wrongful possession of one-tenth ounce, more or less, of marijuana, on or about 11 February 1975. His punishment consisted of forfeiture of $86.00 pay and seven days confinement at the Correctional Custody Facility. b. On 24 May 1975, for absenting himself from his place of duty without authority, on or about 19 May 1975. His punishment consisted of reduction to private/E-1, forfeiture of $89.00 pay, and restriction for 14 days. c. On 1 July 1975, for being disrespectful in language to his superior noncommissioned officer (NCO) and disobeying a lawful order from his superior NCO, on or about 14 June 1975. His punishment consisted of forfeiture of $100.00 pay per month for two months, 30 days of extra duty, and 30 days of restriction. d. On 11 August 1975, for absenting himself from his appointed place of duty without authority and disobeying a lawful order from his superior NCO, on or about 2 August 1975. His punishment consisted of forfeiture of $50.00 pay, 7 days of extra duty, and 14 days of restriction. e. On 23 September 1975, for drunk and disorderly conduct in a public place, on or about 13 September 1975. His punishment consisted of forfeiture of $80.00 pay, 14 days of extra duty, and 14 days of restriction. 5. The applicant’s immediate commander notified the applicant on 12 October 1975 that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-37, Expeditious Discharge Program (EDP), with the issuance of a general discharge certificate. The commander cited the reasons as the applicant’s lack of self-discipline, inability to adjust to the Army, and his poor attitude toward the chain of command and the military. 6. The applicant acknowledged receipt of the notification. He consulted with counsel and was advised of the reason for separation and the rights available to him. He voluntarily consented to the discharge. He understood if he was issued a general discharge, he may encounter substantial prejudice in civilian life. He did not submit a statement in his behalf. 7. The applicant's commander formally recommended his separation from service under the EDP. He noted the applicant had been counseled approximately twenty-five times by the chain of command, which produced no viable results in changing his poor attitude. He lacked self-discipline and could not be trusted to perform in a satisfactory manner without supervision. 8. The separation authority approved the recommended discharge, under the provisions of Army Regulation 635-200, paragraph 5-37, EDP, on 27 October 1975, and further directed the issuance of a DD Form 257A (General Discharge Certificate). 9. The applicant was discharged on 24 November 1975 under the authority of the EDP. Special Orders Number 316, dated 12 November 1975, and his DD Form 214 show his characterization of service was under honorable conditions (general) with separation code KMN. He was credited with 1 year, 1 month, and 7 days of net active service. 10. The Expeditious Discharge Program (EDP) provides that members who have demonstrated they cannot or will not meet acceptable standards required of enlisted personnel in the Army may be separated when they have failed to respond to counseling. 11. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) characterization of service. He contends other mental health condition mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 18 October 1974. * The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on five occasions: * On 13 February 1975, for wrongful possession of one-tenth ounce, more or less, of marijuana. * On 24 May 1975, for absenting himself from his place of duty without authority. * On 1 July 1975, for being disrespectful in language to his superior noncommissioned officer (NCO) and disobeying a lawful order from his superior NCO. * On 11 August 1975, for absenting himself from his appointed place of duty without authority and disobeying a lawful order from his superior NCO. * On 23 September 1975, for drunk and disorderly conduct in a public place. * Applicant’s immediate commander notified him on 12 October 1975 that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5- 37, Expeditious Discharge Program (EDP), with the issuance of a general discharge certificate. The commander cited the reasons as the applicant’s lack of self-discipline, inability to adjust to the Army, and his poor attitude toward the chain of command and the military. * The applicant was discharged on 24 November 1975 under the authority of the EDP. His DD Form 214 shows his characterization of service was under honorable conditions (general). 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, DD Form 214, ABCMR Record of Proceedings (ROP), and 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 states he used alcohol to cope with stress while stationed in Germany. He has been sober since his discharge and is trying to get his life back on track. He would like to apply for housing as he has been homeless in the past. He notes other mental health as a condition related to his request. d. Due to the period of service, no active-duty electronic medical records were available for review. The applicant submitted no hard copy medical documentation from his time of service evidencing any behavioral health condition. e. VA electronic medical records available for review indicate the applicant is not service-connected. The applicant has had inconsistent contact with the VA mental health providers, typically related to situational stressors, not an ongoing behavioral health condition. His initial encounter in the electronic medical record with the VA on 14 October 1998 was related to his depressed mood, due to work related stressors. At the time, the applicant reported a history of polysubstance abuse in remission. The applicant was seen once again for a mental health intake on 30 January 2003, and two follow up sessions, but did not show for services beyond that time. The applicant again engaged with the VA mental health providers and was seen for an intake on 31 July 2009, at the time he was distressed due to financial problems and loss of employment but did not engage in ongoing care. The record indicates an admission note, dated 22 August 2014, to the veteran housing program since the applicant was experiencing housing insecurity. His most recent behavioral health contact, dated 29 December 2022, indicates the applicant had no symptoms of depression, per a screening measure, and a 31 July 2023 follow-up letter notes that the applicant has been successfully housed for over 8 years and demonstrates little need for case management. f. Based on the information available, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support that the applicant had a behavioral health diagnosis that mitigates his misconduct. 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 self-asserts other mental health condition mitigates his discharge (2) Did the condition exist or experience occur during military service? Yes. The applicant reports excessive alcohol use to cope with stress/ other mental health condition. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. Overall, the VA record indicates that the applicant has sought supportive services when he experiences situational stressors but does not require any ongoing care for a behavioral health condition. 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 that the applicant had a behavioral health diagnosis that mitigates his misconduct. In addition, the opine found insufficient evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. Evidence shows VA record indicates that the applicant has sought supportive services when he experiences situational stressors but does not require any ongoing care for a behavioral health condition. 2. The Board determined the applicant was discharged under expeditious discharge program (EDP) and was provided an under honorable conditions (General) characterization of service. 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. In addition, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. As such, 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, relief was denied. 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. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. Paragraph 5-37 of the regulation in effect at the time provided for the discharge of enlisted personnel whose performance of duty, acceptability for service, and potential for continued effective service fall below the standards required for enlisted personnel. The philosophy for this policy is that commanders will be able to anticipate and preclude the development of conditions which clearly indicate that Soldiers concerned are becoming problems to an extent likely to lead to board or punitive action which could result in their separation under conditions which would stigmatize them in the future. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. d. The Expeditious Discharge Program provides that members who have demonstrated they cannot or will not meet the acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions may be separated when they fail to respond to counseling. * poor attitude * lack of motivation * lack of self-discipline * inability to adapt socially or emotionally * failure to demonstrate promotion potential 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder (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 sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20230002595 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1