IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230003022 APPLICANT REQUESTS: In effect, a reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * In lieu of a DD Form 149 (Application for Correction of Military Record), a self- authored statement, dated 12 December 2022 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20220002467, Decision Letter, dated 3 November 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170005510 on 16 July 2019 and AR20220002467 on 20 September 2022, respectively. 2. As a new contention, the applicant states, in effect: a. His separation was due to post-traumatic stress disorder (PTSD) and being knocked unconscious on 30 March 1982, during airborne operations at Fort Bragg, NC (Operation Galant Eagle). He was awakened by other Soldiers and believes he may have had a severe concussion. After returning to the assembly area, since he had no broken bones and wasn’t bleeding; he was told to suck it up by medical personnel. He did have blood around his nose. As time passed, he felt something was wrong as he was constantly scared, confused, and could not focus. He avoided sick call because he kept thinking of being told to suck it up. He started using over the counter drugs to cope with headaches, flashbacks, nightmares, fits of rage/irritability, guilty feelings, alcohol abuse, and suicidal tendencies. b. As a decorated and promotable staff sergeant (SSG), the only explanation for his behavior on 19 February 1987; was not being in his right mind. After his misconduct, no one ever asked, “what caused his behavior,” he was quickly pushed out of the military. 3. On 25 May 1976, the applicant enlisted in the Regular Army for a 3 year-service obligation. Upon completion of initial entry training, award of military occupational specialty 11B (Light Weapons Infantryman), and completion of basic airborne training, he was assigned to Panama and arrived on 2 November 1976. On 1 November 1978, he was reassigned to Fort Bragg, NC. 4. On 28 March 1979, he was honorably discharged for immediate reenlistment. The DD Form 214 (Report of Separation from Active Duty), he was issued shows he was credited with completing 2 years, 10 months, and 4 days of net active service this period. 5. On 29 March 1979, the applicant reenlisted in the Regular Army for a 4-year service obligation, in the rank/grade of specialist/E-4. He honorably served through several reenlistments and attained the rank/grade of SSG/E-6 on 19 November 1982. 6. On 21 January 1986, the applicant underwent a retention medical examination. The supporting documents show he reported smoking 15 cigarettes per day but was in good health with no medical issues. Subsequently, the examining physician qualified him for retention. 7. On 19 February 1987, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with two specifications of larceny and wrongful appropriation by using a stolen automatic teller machine card to steal $150 and $110 (U.S. currency) the property of Private First Class (PFC) on or about 30 January and 31 January 1987; and wrongfully stealing two letters addressed to PFC, on or about 29 January 1987. 8. On 19 February 1987, after consulting with 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 his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge and was afforded the opportunity to submit a statement in his own behalf. He elected not to submit a statement. 9. Subsequently, the applicant's commander recommended approval of his discharge request and the issuance of an UOTHC discharge. He noted the applicant’s performance fell below the standards expected of a noncommissioned officer (NCO), his violation of the UCMJ and subsequent behavior was reprehensible and a total disregard for the trust and authority given to him. There were not reasonable grounds to believe he was mentally defective, deranged, or abnormal at the time of his misconduct. Subsequently, his entire chain of command recommended approval of the request. 10. On 24 February 1987, the separation authority approved the applicant's request for discharge for the good of the service. He further directed the applicant’s reduction to the lowest enlisted grade with the issuance of an UOTHC Discharge Certificate. 11. On 3 March 1987, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial. His service was characterized as UOTHC. He was credited with completing 7 years, 11 months, and 3 days of net active service. He was awarded or authorized the: * Army Commendation Medal (3rd award) * Army Achievement Medal (3rd award) * Good Conduct Medal (3rd Award) * Army Service Ribbon * Overseas Service Ribbon * NCO Professional Development Ribbon with Numeral 2 * Expert Infantryman Badge * Master Parachutist Badge * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 12. 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. 13. On 6 April 1994, the Army Discharge Review Board considered the applicant’s petition for an upgrade of his service characterization. After careful consideration, the Board determined his characterization of service was neither in error nor unjust and denied his request for relief. 14. On 16 July 2019, the ABCMR considered the applicant’s petition for an upgrade of his characterization of discharge and reinstatement of his rank to SSG. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. However, the Board corrected his record by adding the statement "Continuous honorable active service from 29 March 1979 until 3 March 1987" to block 18 (Remarks) of his DD Form 214 and issued him a DD Form 215 (Correction to DD Form 214). 15. On 20 September 2022, the ABCMR reconsidered the applicant’s petition for an upgrade of his characterization of 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. 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. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requests reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) character of service. He asserts on this application that he was experiencing PTSD and a traumatic brain injury (TBI) during his active service, which contributed to 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 into the Regular Army on 25 May 1976; 2) On 19 February 1987, court-martial charges were preferred against the applicant for two specifications of larceny and wrongful appropriation by using a stolen automatic teller machine card to steal $150 and $110, which was the property of a lower enlisted Soldier, and he was charged with wrongfully stealing two letters addressed to the same lower enlisted Soldier; 3) The applicant was discharged on 3 March 1987, Chapter 10, for the good of the service – in lieu of court-martial. His characterization of service was UOTHC; 5) The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 6 April 1994, his request was denied; 6) The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 16 July 2019 and 20 September 2022, his request was denied. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and available medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional civilian medical documents were provided for review. d. The applicant noted PTSD and TBI as contributing and mitigating factors in the circumstances that resulted in his separation. The applicant reported experiencing an untreated TBI while involved in military operations on 30 March 1982. He described experiencing increased anxiety, confusion, headaches, increased irritability, alcohol abuse, suicidal ideation, and other behavioral health symptoms as a result. He stated he did not seek medical attention for these symptoms, but he managed them with over- the-counter medication. The applicant continued to promote in rank to promotable staff sergeant (SSG) when he was charged with violations of UCMJ. There is insufficient evidence the applicant reported mental health symptoms or symptoms of a TBI while on active service. On 21 January 1986, the applicant underwent a retention medical examination, and he was determined to be in good health with no medical issues. A review of JLV was void of medical documentation, and the applicant receives no service-connected disability. e. Based on the available information, it is the opinion of the ARBA Medical Advisor that there is insufficient evidence to support the applicant had condition or experience that 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 contends he was experiencing PTSD and a TBI that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing PTSD and a TBI while on active service. (3) Does the condition or experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was experiencing PTSD or a TBI while on active service. In addition, there is no nexus between PTSD and TBI and the applicant’s misconduct of theft and larceny given that: 1) these types of misconduct are not part of the natural history or sequelae of PTSD or TBI; 2) PTSD and TBI 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 PTSD and TBI that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's mental health claim and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a mental health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AR20170005510 on 16 July 2019 and AR20220002467 on 20 September 2022. 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 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 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. 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. 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 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. 5. 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, 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. 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) AR20230003022 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1