IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002600 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and the narrative reason for separation to "Secretarial Authority." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (Exhibit B) * Attorney Letter/Brief * List of Exhibits * Exhibit A-DD Form 214 (Report of Separation from Active Duty) * Exhibit C-Statement of Intent (Applicant) * Exhibit D-Test (Urinalysis) Result * Exhibit E-Medical Document * Exhibit F-Proclamation * Exhibit G-High School Diploma * Exhibit H,I-Degree of Associate in Arts Certificate (two) * Exhibit J-Certificate of Completion * Exhibit K-Photo * Exhibit L-FICO (Fair Issac Corporation) Score * Exhibit M-Performance Rating * Exhibit N-Photo * Exhibit O-Letters of Recommendation (two) 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 AR20120021314 on 27 June 2013. 2. The applicant states, in a Statement of Intent, dated 6 October 2022, that he will never misuse substances in the future. This shall include the use or possession of any illegal drug, or the use of a legal prescription drug without a valid prescription in a manner inconsistent with their intended purpose. Should there be a violation regarding drug involvement or substance misuse, the applicant consents to automatic revocation of his security clearance. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and mental health are related to his request. 3. Counsel states: a. The applicant served honorably for two years and seventeen days before his discharge, notwithstanding a single act of indiscretion. The applicant was an outstanding member and an asset of the U.S. Army with unlimited potential. He was young at the time of his enlistment and decided to make a decision which was not becoming of an enlisted private first class/E-3. The applicant is aware that this was a violation of the Army’s zero tolerance policy. He is remorseful for his involvement to participate in illegal drug use and now realizes that his actions were immature and irresponsible. Although his single act of indiscretion was found to violate the Uniform Code of Military Justice (UCMJ) regulations, this single offense should not be enough to prevent him from obtaining an honorable discharge. He confessed his mistake and if given the opportunity, he would have corrected his mistake, and continued to serve honorably. b. The applicant has worked construction for the past 30 years and is married. Although he is still serving his country the best way possible, he has goals to advance and exceed at his job but cannot do so because of his undesirable discharge. He loves his country and the U.S. Army and wishes to remain close to the Army and veterans who have served. This same respect, motivation, and devotion drive his request as he wishes to be counted among the U.S. Army's honorably discharged members, which he considers to be an enormous part of his life. c. The applicant was not given a reasonable opportunity to mitigate or correct his mistake/behavior; instead, he was administratively separated. He respectfully requests that the Board review his application and grant him an upgrade of his discharge to honorable and his narrative reason to "Secretarial Authority." 4. The applicant enlisted in the Regular Army on 30 July 1973 for two years, at the age of 18 years old. 5. The applicant served in Korea from 19 December 1973 through 13 December 1974. A review of the applicant’s service record contains sufficient evidence to support he is eligible for an award that are not annotated on his DD Form 214 for the period ending 6 August 1979. The Korea Defense Service Medal will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in block 24. 6. He was honorably released from active duty on 29 July 1975 and transferred to the U.S. Army Reserve (USAR) Control Group. His DD Form 214 shows he completed 2 years of net active service this period. He was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), Sharpshooter Marksmanship Badge (M-16), and the Army Good Conduct Medal (1st Award). 7. He reenlisted in the Regular Army on 20 July 1977, for four years, in the rank/grade of specialist four/E-4. 8. He served in Germany from 10 August 1977 through 1 August 1979. 9. Docket Number AR20120021314 shows court-martial charges were preferred against the applicant on 22 June 1979, for violations of the UCMJ. Specifically, for one or more specifications of the sale and possession of heroin. 10. The applicant consulted with legal counsel on the same date, and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights available to him. a. Subsequent to consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (AR) (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. b. He also indicated he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service; acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense. He further acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many, or all benefits administered by the Veterans Administration; he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He did not submit a statement in his own behalf. 11. The applicant’s immediate commander recommended disapproval of the applicant’s request for discharge on 25 June 1979 and noted that the crimes of the sale of heroin and possession of marijuana were serious, and allowing the applicant to be simply discharged would have an adverse impact on the order and discipline of the unit. 12. The applicant's intermediate commander also recommended disapproval on 26 June 1979, and strongly opposed any recourse other than court-martial. He noted that to simply discharge the applicant would be a travesty of justice and would have an immediate impact on the morale of the battalion. 13. A Report of Mental Status Evaluation, dated 28 June 1979, shows the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings and met retention standards. His Report of Medical History shows the applicant denied current medical problems and was worried about discharge procedures. 14. The applicant’s senior commander, a general officer, reviewed the charges on 2 July 1979, and noted that discharging the applicant would be in the best interest of the Army. 15. The separation authority approved the applicant's request for discharge in lieu of court-martial on 5 July 1979. He directed the applicant be reduced to the lowest enlisted grade and his service be characterized as UOTHC. 16. The applicant was discharged accordingly on 6 August 1979. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, Chapter 10, with Separation Program Designator code JFS [for the good of the service - in lieu of trial by court-martial]. His service was characterized as UOTHC. He completed 2 years and 17 days of net active service this period. He was awarded or authorized the: * Army Commendation Medal * National Defense Service Medal * Armed Forces Expeditionary Medal * Sharpshooter Marksmanship Badge (M-16) * Army Good Conduct Medal 17. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 18. The applicant provides: a. Exhibit A-DD Form 214 (Report of Separation from Active Duty) and Exhibit C- Statement of Intent (Applicant) as discussed above. b. Exhibit D-Test (Urinalysis) Result dated 14 October 2022 shows a positive result for marijuana. c. Exhibit E-Medical Document, undated, shows the purpose of this medical document is to identify the applicant as a patient whose possession and/or cultivation of medical cannabis is permissible pursuant to California Health and Safety Code and affirms the applicant has been examined and evaluated by the physician indicated on this document and that the physician is licensed to practice medicine In the State of California. d. Exhibit F-Proclamation shows President Biden’s intent by this proclamation is to pardon only the offense of simple possession of marijuana in violation of Federal law or in violation of D.C. Code 48-904.0l(d)(1), and not any other offenses related to marijuana or other controlled substances. e. Exhibit G-High School Diploma, Exhibit H,I-Degree of Associate in Arts Certificate (two), Exhibit J-Certificate of Completion, Exhibit K-Photo, Exhibit L-FICO Score, Exhibit M-Performance Rating, Exhibit N-Photo. f. Exhibit O-Letters of Recommendation (two) that attest to the applicant’s great communication skills, is committed and a courteous citizen. He is a man of valor who cares for others. His friend, , is a registered associate marriage and family therapist, has known him for 20 years and assisted with her father who was an Army veteran who had both his legs amputated. He has financially supported others in need when he had the ability to do so. 19. On 27 June 2013, the ABCMR determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of the case were insufficient as a basis for correction of the records of the applicant and denied his request. 20. 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. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge and change to his narrative reason for separation. The applicant contents that he experienced mental health conditions including PSTD, which mitigates 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 reenlisted in the Regular Army on 20 July 1977; 2) Court-martial charges were preferred against the applicant on 22 June 1979, for the sale and possession of heroin; 3) The applicant was discharged on 06 August 1979, Chapter 10, with Separation Program Designator code JFS [for the good of the service - in lieu of trial by court- martial]. His service was characterized as UOTHC; 4) The ABCMR, on 27 June 2013, reviewed and denied the applicant’s request for an upgrade. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional behavioral health documentation was provided. d. The applicant asserts he experienced mental health conditions including PTSD which were mitigating factors in the circumstances that resulted in his separation. There was insufficient evidence beyond self-report the applicant was experiencing symptoms of a mental health condition, including PTSD while in active service. Also, there is insufficient evidence the applicant deployed to an active combat zone. On 28 June 1979, the applicant was provided a mental status exam. He was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met retention standards. A review of JLV provided evidence the applicant reported and was treated for anxiety related to recent stressors in 2009. In April 2023, the applicant reported PTSD, anxiety and depressive symptoms predominately related to recent stressors. He also reported experiencing negative events during his military service, but there was insufficient evidence presented in the medical record in regard to specific events, and the applicant receives no service-connected disability for a behavioral health condition. 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 mental health conditions, including PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions, including PTSD that contributed to his misconduct 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 mental health condition, including PTSD while on active service. In addition, there is no nexus between the applicant’s report of a mental health condition including PTSD and selling heroin given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD, depression or anxiety; 2) PTSD, anxiety, and depression do not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends he was experiencing a mental health condition 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. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted, the opine found insufficient evidence beyond self-report the applicant was experiencing a mental health condition, including PTSD while on active service. 2. In addition, there is no nexus between the applicant’s report of a mental health condition including PTSD and selling heroin given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD, depression or anxiety; 2) PTSD, anxiety, and depression do not affect one’s ability to distinguish right from wrong and act in accordance with the right. The Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board agreed the applicant, nor his counsel presented evidence that demonstrated the existence of a probable error or injustice. Based on a preponderance of evidence, the Board denied relief. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant. ? 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: Except for the correction addressed in Administrative Note(s) below, 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 AR20120021314 on 27 June 2013. 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. ADMINISTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 6 August 1979. As a result, amend his DD Form 214 by adding Korea Defense Service Medal. REFERENCES: 1. 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. 2. AR 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. 3. AR 635-5 (Personnel Separations-Separation Documents) prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established the standardized policy for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The information entered thereon reflects the conditions as they existed at the time of separation. It states for Block 9c, (Authority and Reason), enter statutory and/or regulatory authority for separation plus the Separation Program Designator code. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. SPD code JFS is assigned to enlisted Soldiers separated under the provisions of Chapter 10, of AR 635- 200, for the good of the service in lieu of trial by court-martial. 5. 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 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. 6. 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. 7. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20230002600 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1