IN THE CASE OF: BOARD DATE: 19 October 2023 DOCKET NUMBER: AR20230003126 APPLICANT REQUESTS: the applicant, the daughter of a deceased former service member (FSM), requests reconsideration of her prior request for an upgrade of the FSM’s under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Letter from (daughter) and (son-in-law) * ABCMR Denial Letter dated 7 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20220002659 on 1 November 2022. 2. The applicants state they are requesting reconsideration of the prior decision by providing new evidence not previously considered. The Board did consider the FSM’s mental state and a medical review was provided; however, the applicants provide as new evidence additional details regarding the FSM’s contributing factors to post- traumatic stress disorder (PTSD). a. The FSM was raised in an abusive family with an alcoholic father who was physically and verbally abusive. He constantly threatened the FSM and his siblings with bodily harm with a machete which would force them to hide in the home rafters to escape his abuse. His parents would subsequently divorce. b. His mother remarried another abusive alcoholic, and the FSM was forced to protect her by jumping on his stepfather and holding him down. He was eventually kicked out of the house at the age of 16 and left to take shelter at the home of friends or sleep in his car, even in winter months. The applicants believe this could have led to undocumented mental health and his alcohol abuse began at this time. c. At the age of 17 or 18, the FSM witnessed the death of two friends. His best friend shot himself unintentionally in the head while handling a handgun in his apartment and the FSM held him while the paramedics arrived. Sometime later, a close friend was shot and killed by an ex-girlfriend’s new boyfriend. The applicants further indicated undocumented mental and behavioral health issues, specifically PTSD, could have developed and expanded his abuse and addiction to alcohol. d. The FSM worked for a short period for one of the friend’s fathers at a cement company prior to serving in the military. Following his release from the military, the FSM completed three separate alcohol treatment programs and was successfully declared sober in 1977. It was at that time the FSM became certified as a Master Cement Finisher. The FSM not only built his own home; he also began his own company and worked closely with other construction companies. He even took on the task of building his own home. e. The FSM’s last place of employment was using his carpentry skills to repair wooden boats built in the 1960’s and teaching young men to do the same. The owners of the resort truly loved the FSM. The applicants believe the FSM’s traumatic childhood, having been raised by abusive alcoholic men, and the deaths of two childhood friends, contributed significantly to his full blown alcoholism by the time he enlisted in the Army. They further noted there are no records because PTSD was not documented at that time; however, the FSM’s condition and childhood should be considered as factors. They are not requesting the FSM be forgiven; however, an upgrade would allow him to be buried at the Veterans cemetery. The applicants request his full life be considered. 3. A review of the applicant’s service record shows: a. The FSM was inducted into the Army of the United States on 23 September 1970. b. A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) shows he accepted non-judicial punishment (NJP) on 12 January 1971, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 7 January 1971, to on or about 11 January 1971. His punishment included forfeiture of $20.00 for one month. c. Special Orders Number 053, dated 18 March 1971, shows the FSM was returned to military control effective 11 March 1971. d. The FSM accepted non-judicial punishment on 22 March 1971, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 13 January 1971 through on or about 11 March 1971. His punishment included reduction to private/E-1 and forfeiture of $40.00 for two months. e. Special Orders Number 124, dated 28 June 1971, shows the FSM was returned to military control effective 25 June 1971. f. Summary Court Martial (SCM) Order Number 65 shows he was convicted on 13 July 1971 for one specification of AWOL from on or about 16 April 1971 until on or about 25 June 1971. His sentence included forfeiture of $89.00 pay and confinement at hard labor for 30 days. g. DD Form 553 (Deserter Wanted by the Armed Forces) shows on 18 September 1971 the FSM was declared “dropped from rolls,” and his next of kin was identified. An attached document shows in Part VIII (Return to Military Control) the FSM was received on 25 January 1972. h. Special Orders Number 22, dated 1 February 1972, shows the FSM was returned to military control effective 25 January 1972. i. The service record is void of the DD Form 458 (Charge Sheet) and a complete, signed separation packet to include the FSM’s request for discharge for the good of the service. j. An unsigned, undated recommendation from the FSM’s immediate commander shows he recommended approval for the enlisted member’s (EM) request for discharge for the good of the service. The commander indicated the FSM was unwilling to adjust to military service and any further disciplinary or rehabilitative action would be futile. The FSM was pending trial for AWOL on two occasions totaling 136 days and had three prior AWOL periods totaling 131 days, two for which he received Article 15’s and one for which he received a SCM. He recommended the FSM receive an Undesirable Discharge. k. A second unsigned and undated recommendation from the intermediate commander shows he recommended approval, and no election was made for the type of discharge to be issued. l. On 29 February 1972, consistent with the chain of command recommendations, the separation authority approved the request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. He would be issued an undesirable discharge and reduced to the lowest enlisted grade, if serving in a higher grade. m. Special Orders Number 62, dated 2 March 1972, discharged the FSM with an effective date of 3 March 1972. n. He was discharged from active duty on 3 March 1972 with an under other than honorable conditions characterization of service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 6 months and 22 days of active service with 323 days of lost time, listed as follows: * 7-10 January 1971 * 13 January – 10 March 1971 * 16 April – 24 June 1971 * 13 July – 5 August 1971 * 7-13 August 1971 * 17 September 1971 – 24 January 1972 * 28 January 1972 – 28 February 1972 4. On 1 November 2022, the ABCMR rendered a decision in Docket Number AR20220002659. The Board considered the medical records and the review and conclusions of the advising official. The Board determined the character of service the FSM received upon separation was not in error or unjust. The medical advisor noted: a. It is the opinion of the Agency BH Advisor that there is insufficient evidence to support the FSM had condition or experience that mitigated his misconduct. However, the applicant contends the FSM had mental health issues that mitigated his misconduct, and per Liberal Consideration her contention is sufficient for the board's consideration. b. There is no evidence supporting the applicant had BH related issue while on active duty and JLV is void of any history of VA medical treatment. The applicant did provide an autopsy report that listed the FSM as having a history of depression and chronic ethanol use, but this is not sufficient to establish a history of depression during active service. 5. There is no evidence the FSM applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 7. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service or in lieu of trial by court-martial. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 9. MEDICAL REVIEW: a. The applicant, the daughter of a deceased former service member (FSM), requests reconsideration of her prior request for an upgrade of the FSM’s other than honorable conditions (UOTHC) discharge. She contends the FSM 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 was inducted into the US Army on 23 September 1970; 2) The applicant was found AWOL multiple times between January 1971-February 1972; 3) The applicant was discharged on 3 March 1972, Chapter 10, (for the good of the service). His service was characterized as UOTHC; 4) On 1 November 2022, the ABCMR reviewed and denied the request to upgrade the FSM’s discharge. c. The Army Review Board Agency (ARBA) Behavioral Health (BH) Advisor reviewed the supporting documents and available military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant asserts the FSM suffered numerous traumas during his childhood and young adult life, which likely resulted in with him experiencing undiagnosed mental health symptoms. She contends the applicant would have been diagnosed as PTSD prior to his active service, and this mitigates the FSM’s misconduct of repeatedly going AWOL. There was insufficient evidence the applicant was diagnosed with a mental health condition prior to or while on active service. A review of JLV was void of any medical documentation, and the applicant receives no service-connected disability. 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 the FSM was experiencing PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports the FSM was experiencing PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond the report of the applicant the FSM was experiencing PTSD while on active service. The applicant did go AWOL numerous times, which can be a sequalae to PTSD, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends the FSM was experiencing PTSD 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, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicants’ statements, the FSM’s record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The applicant provided no evidence of the FSM’s post-service achievements to corroborate her statement or letters of reference in support of a clemency determination. The Board again found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding the FSM’s misconduct not being mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined the character of service the FSM 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 Number AR20220002659 on 1 November 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. 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. Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, to carefully consider the revised posttraumatic 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. 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, on 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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) AR20230003126 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1