IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230002605 APPLICANT REQUESTS: reconsideration of his previous request for an 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 149 (Application for Correction of Military Record) * Outpatient Enrolment Letter, dated 18 November 2022, with Diagnosis Sheet 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 AR2004104614 on 14 December 2004. 2. The applicant states he joined the Army on 16 November 1972, when he was only 16 years old. He was not mature enough to follow orders and could not adjust to what was being asked of him. He is now 66 years of age and asks for reconsideration. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and other mental health issues as being related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 4. On 17 November 1972, the applicant enlisted in the Regular Army for a 3-year service obligation. His DD Form 4 (Enlistment Contract) and allied documents shows he listed his date of birth as, making his age years, months, and days at enlistment. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 20 December 1972, for losing military property a M17 protective mask, through neglect, on or about 19 December 1972; his punishment was forfeiture of $25 for one month * on 11 June 1973, for failing to go at the time prescribed to his appointed place of duty, on or about 9 June 1973; his punishment included forfeiture of $71 (suspended), reduction to E-1 (suspended), 14 days of extra duty and restriction * on 21 January 1974, for failing to go at the time prescribed to his appointed place of duty, on or about 16 January 1974; his punishment included reduction to E-1, forfeiture of $100 pay for two months, and 30 days correctional custody * on 7 May 1974, for two specifications of failing to go at the time prescribed to his appointed place of duty, on or about 26 April 1974, and on or about 30 April 1974; his punishment included forfeiture of $100 pay for two months, and 30 days correctional custody 6. On 24 October 1974, before a special court-martial at Fort Benning, GA, the applicant was found guilty of being absent without leave (AWOL) from on or about 30 July 1974 until 12 August 1974. His sentence included forfeiture of $100 pay for four months. On 13 November 1974, the sentence was approved. 7. On 30 October 1974, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for two specifications of failing to go at the time prescribed to his appointed place of duty, on or about 25 October 1974 and on or about 29 October 1974. His punishment included 30 days correctional custody (suspended for 120 days). 8. On 1 October 1975, before a special court-martial at Fort Benning, GA, the applicant was found guilty of one specification of wrongfully selling marijuana and one specification of possessing 6.30 grams more or less of marijuana, on or about 7 February 1975; and one specification of being AWOL from on or about 12 May 1975 until 28 July 1975. The court sentenced him to separation from service with a bad conduct discharge (BCD), confinement at hard labor for 135 days, and forfeiture of $240 pay per month for six months. 9. On 5 November 1975, the convening approved only so much of the applicant's sentence as providing for a BCD. Confinement at hard labor in excess of 30 days was suspended for six months and the forfeiture of his pay was deferred until such time as the sentence was ordered executed. The record of trial was forwarded for appellate review. 10. On 14 March 1977, the U.S. Court of Military Appeals denied the applicant's request for a grant of review. 11. Special Court Martial Order Number 20, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, GA on 30 March 1977, noted the applicant’s sentence was affirmed and ordered the BCD to be duly executed. 12. On 21 April 1977, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. His DD Form 214 (Report of Separation from Active Duty) shows his service was characterized as UOTHC, he was credited with completing 3 years, 10 months, and 3 days of net active service, with 217 days of lost time. He was retained in service for 305 days for convenience of the government. 13. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code (USC), Section 1552, the authority under which this Board acts, the ABCMR 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. 14. On 12 December 1980, the Army Discharge Review Board reviewed the applicant's military record and determined his discharge was both proper and equitable, and denied is request for an upgrade. 15. On 14 December 2004, the ABCMR considered the applicant’s petition for an upgrade of his discharge. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 16. The applicant provides an outpatient enrollment letter and diagnostic impression sheet, which includes PTSD and schizoaffective disorder, depressive. 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. The applicant requests reconsideration of his previous request to upgrade his UOTHC discharge to honorable. He contends his misconduct was related to PTSD and Other Mental Health Issues. 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 into the Regular Army on 17 November 1972; 2) As detailed in the ROP the applicant accepted NJP under provision of Article 15 of the UCMJ on multiple occasions between 20 December 1972 and 30 October 1975; 3) On 24 October 1974, before a special court-martial at Fort Benning, GA, the applicant was found guilty of being absent without leave (AWOL) from on or about 30 July 1974 until 12 August 1974; 4) On 1 October 1975, before a special court-martial at Fort Benning, GA, the applicant was found guilty of one specification of wrongfully selling marijuana and one specification of possessing 6.30 grams more or less of marijuana, on or about 7 February 1975; and one specification of being AWOL from on or about 12 May 1975 until 28 July 1975; 5) On 21 April 1977, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No military BH records were provided for review. A review of JLV showed the applicant has a VA BH treatment history but does not have a SC disability. Records suggest the applicant attended a general BH skills group, intermittently, between September 2000 and December 2000. Records were sparse on specific details and lacked any BH diagnosis for the applicant during the period. Records showed the applicant was diagnosed with Intermitted Explosive Disorder on 10 January 2001 and complained of problems with irritability, depression, being easily angered, difficulty keeping a job secondary to a bad temper, and a history of violence. He was noted to not have active combat experience nor PTSD symptoms; current stressor reportedly related to his children relocating to California with their mother. The applicant was prescribed psychotropic medication and referred for outpatient treatment. Encounter note dated 8 July 2002 showed the applicant’s problem list was amended to reflect Major Depressive Episode secondary to poor relationships with his daughter and colleagues. On 14 July 2003 the applicant was seen at a VA crisis center in Las Vegas NV, for supportive therapy and medical evaluation, where he reported a history of depression, and PTSD secondary to hearing other Soldiers talking about their deployment experience. He reportedly had difficulties being taught to kill, as a 16 year old, and started using drugs; from which he reportedly never recovered. He was voluntarily psychiatrically hospitalized from 21 October 2003 to 29 October 2003 for suicidal and homicidal thoughts, secondary to becoming mad at this girlfriend. During the hospitalization he was detoxed from alcohol. His discharge diagnoses reflected Polysubstance Abuse Induced Mood Disorder, Major Depressive Disorder single episode, and Personality Disorder. d. The applicant’s next encounter occurred on 28 May 2009 whereby he presented to the Atlanta, GA VA ED with significant symptoms of depression and reported plan to commit suicide via OD. He reported months of depressed mood, hopelessness, helplessness, poor sleep, and recurring thoughts of killing himself. Records showed the provider cleared the applicant for involuntary psychiatric admission, however, JLV was void of any records associated with the possible admission. Diagnoses associated with the ED were MDD recurrent, Alcohol Dependence, Nicotine Dependence. JLV was void of any additional BH treatment encounters for the applicant. Included in the applicant’s casefile was a letter from provider, associated with AmericanWork, LLC dated 18 November 2022, that showed the applicant was a patient of the provider since 6 March 2012. Also included was a list of the applicant diagnoses which consisted of Schizoaffective Disorder and PTSD. There is no medical documentation associating either disorder with the applicant’s time in service. e. The applicant requests reconsideration of his previous request to upgrade his UOTHC discharge to honorable. He contends his misconduct was related to PTSD and Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post-service records showed the applicant diagnosed by the VA with MDD recurrent, Intermittent Explosive Disorder, Alcohol Dependence, Nicotine Dependence, and Personality Disorder. The degree that the applicant’s disorders are related to military service is questionable, given the applicant’s does not appear to be an accurate historian. The applicant was also diagnosed with PTSD and Schizoaffective Disorder by a civilian provider. There is no information in the civilian medical documentation linking the applicant’s diagnoses with military service, however, the applicant asserts the connection, and under liberal guidance, this advisor will accept the assertion. Thus, as there is an association with PTSD and avoidance, there is a nexus between the applicant’s misconduct characterized by going AWOL and PTSD, such that the misconduct is mitigated. However, the applicant’s misconduct characterized by wrongful selling and possession of 6.3 gram of marijuana is not mitigated as it is not natural sequela of PTSD or any of the other diagnoses listed for the applicant. Additionally, there is nothing in the records to support that applicant had a condition that rendered him unable to differentiate between right and wrong and adhere to the right. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant had an experience or condition during his time in service that partially mitigated 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 his diagnosed with PTSD, MDD, Schizoaffective Disorder, and other BH conditions. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. A review of the records was void of any BH diagnosis or treatment history for the applicant during service. Post-service records showed the applicant diagnosed by the VA with MDD recurrent, Intermittent Explosive Disorder, Alcohol Dependence, Nicotine Dependence, and Personality Disorder. The degree that the applicant’s disorders are related to military service is questionable, given the applicant’s does not appear to be an accurate historian. The applicant was also diagnosed with PTSD and Schizoaffective Disorder by a civilian provider. There is no information in the civilian medical documentation linking the applicant’s diagnoses with military service, however, the applicant asserts the connection, and under liberal guidance, this advisor will accept the assertion. Thus, as there is an association with PTSD and avoidance, there is a nexus between the applicant’s misconduct characterized by going AWOL and PTSD, such that the misconduct is mitigated. However, the applicant’s misconduct characterized by wrongful selling and possession of 6.3 gram of marijuana is not mitigated as it is not natural sequela of PTSD or any of the other diagnoses listed for the applicant. Additionally, there is nothing in the records to support that applicant had a condition that rendered him unable to differentiate between right and wrong and adhere to the right. 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 considered the advising official finding sufficient evidence that the applicant had an experience or condition during his time in service that partially mitigated his misconduct. The Board noted, the opine finding there is an association with PTSD and avoidance, there is a nexus between the applicant’s misconduct characterized by going AWOL and PTSD, such that the misconduct is mitigated. 2. However, the Board agreed under liberal consideration, migration could not be given for the applicant’s misconduct characterized by wrongful selling and possession of 6.3 gram of marijuana as it is not natural sequela of PTSD. The Board determined there is no information in the civilian medical documentation linking the applicant’s diagnoses with military service. The applicant provided insufficient evidence of post-service achievements or character letters of support for honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in- service mitigating factors for the misconduct to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 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 AR2004104614 on 14 December 2004. 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 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, in effect at the time, set 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. Chapter 11, of the version in effect at the time provided that an enlisted person would be given a bad conduct discharge (BCD) pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR 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. 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 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// ABCMR Record of Proceedings (cont) AR20230002605 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1