IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230003342 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) (three) 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 AR20190001373 on 7 June 2019. 2. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) is related to his request. 3. The applicant enlisted in the Regular Army on 27 February 1976, he was honorably discharged on 2 January 1979. He was issued a DD Form 214 (Report of Separation from Active Duty) for this period of service. He was credited with 2 years, 10 months, and 6 days of net active service this period. 4. The applicant re-enlisted in the Regular Army on 3 January 1979, for 6 years. The highest grade he attained was E-5. 5. On 13 September 1979, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully striking a female civilian in the back with a sharp object, on or about 2 August 1979. His punishment included forfeiture of $143.00, and 14 days extra duty and restriction. 6. On 12 September 1980, the applicant accepted NJP under Article 15 of the UCMJ for being drunk and disorderly and willfully damaging a door by kicking, on or about 10 September 1980. His punishment included forfeiture of $156.00 pay and 14 days restriction. 7. On 25 November 1980, the applicant was reported as absent without leave and remained absent until he returned to military authorities on 26 November 1980. 8. The applicant received formal counseling on the following dates/for: * 13 January 1981, missing formation * 2 March 1981, absenting himself from a mandatory class 9. On 25 March 1981, the applicant accepted NJP under Article 15 of the UCMJ for unlawfully entering a building with the intent to commit assault, on or about 23 March 1981; and wrongfully communicating a threat to injure another Solder, on or about 25 March 1981. His punishment included reduction in grade to E-4, forfeiture of $350.00 per month for two months, and 14 days extra duty. 10. On 7 April 1981, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 11. The applicant's commander notified the applicant on 16 April 1981, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 13, for unsuitability. His commander noted the applicant had exhibited a defective attitude and an inability to expend effort effectively. 12. The applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He waived appearance before a board of officers and indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He declined to submit a statement in his own behalf. 13. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-4c, for unsuitability. He further noted the applicant did not wish to present his case before a board of officers. 14. Consistent with the chain of command s recommendations, the separation authority approved the recommended separation action on 22 April 1981, with the issuance of a DD Form 257A (General Discharge Certificate). 15. The applicant was discharged on 30 April 1981. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-4c(2) for unsuitability-apathy, defective attitude, or inability to expend effort constructively. His service was characterized as under honorable conditions (general). He was assigned Separation Code JMJ and Reentry Code 3. He completed 2 years, 3 months, and 27 days of net active service this period. 16. The applicant petitioned the ABCMR requesting upgrade of his under honorable conditions (general) discharge. On 7 June 2019, the Board voted to deny relief and determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. He contends PTSD 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 27 February 1976, he was honorably discharged on 2 January 1979. Applicant re-enlisted in the RA on 3 January 1979. * On 13 September 1979, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for unlawfully striking a female civilian in the back with a sharp object, on or about 2 August 1979. * On 12 September 1980, the applicant accepted NJP under Article 15 of the UCMJ for being drunk and disorderly and willfully damaging a door by kicking, on or about 10 September 1980. * On 25 November 1980, the applicant was reported as absent without leave and remained absent until he returned to military authorities on 26 November 1980. * On 25 March 1981, the applicant accepted NJP under Article 15 of the UCMJ for unlawfully entering a building with the intent to commit assault, on or about 23 March 1981; and wrongfully communicating a threat to injure another Soldier, on or about 25 March 1981. * Applicant's commander notified the applicant on 16 April 1981, that he was initiating actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations Enlisted Personnel), Chapter 13, for unsuitability. His commander noted the applicant had exhibited a defective attitude and an inability to expend effort effectively. * Applicant was discharged on 30 April 1981. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-4c(2) for unsuitability-apathy, defective attitude, or inability to expend effort constructively. His service was characterized as under honorable conditions (general). He was assigned Separation Code JMJ and Reentry Code 3. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD 214, and documents from his service record and separation packet. 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. d. On his application, the applicant selected PTSD as related to his discharge. However, he did not provide a rationale or state the traumatic event that might have caused his PTSD, nor did he provide any medical documentation. This adviser questions whether the applicant selected this contention in error. e. Due to the period of service, no active-duty electronic medical records were available for review. On 7 April 1981, the applicant underwent a mental status evaluation, no concerns were noted. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. The VA electronic record indicates the applicant has received services via the VA since October 2012. The applicant is not service connected, and his record does not evidence any mental health diagnosis. The applicant briefly participated in the VA Substance Abuse Recovery Program (SARP) from 10 July 2014 to 17 September 2014, after he was mandated to substance abuse treatment by his employer due to testing positive for cocaine. The applicant discontinued services reportedly due to his work schedule. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence the applicant had a behavioral health condition during military service. Regardless, it is unlikely any BH condition would mitigate his discharge. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes, the applicant selected PTSD on his application as related to his discharge. (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. And while the applicant self-asserts PTSD, he did not provide any medical documentation substantiating the diagnoses and did not provide a rationale for his contention. However, regardless of a diagnosis, PTSD would not mitigate striking a female civilian in the back with a sharp object, being drunk and disorderly and willfully damaging a door by kicking, or intent to commit assault and wrongfully communicating a threat to injure another soldier. PTSD does not impact the ability to distinguish right from wrong and act in accordance with 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant s petition, available military records and the medical review, the Board concurred with the advising official finding insufficient evidence the applicant had a behavioral health condition during military service. The opine noted no evidence of any in-service BH diagnoses, and the VA has not service-connected the applicant for any BH condition. And while the applicant self-asserts PTSD, he did not provide any medical documentation substantiating the diagnoses and did not provide a rationale for his contention. 2. The Board determined the applicant s service record exhibits numerous instances of misconduct during his enlistment period for 2 years, 3 months, and 27 days of net active service this period. The Board found the applicant was discharged for unsuitability and was provided an under honorable conditions (General) characterization of service. 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. 3. This board is not an investigative body. The Board determined despite the absence of the applicant s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of behavioral health issues. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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 AR20190001373 on 7 June 2019. 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, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-4c(2), as then in effect, provided for separation for unsuitability- apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or under honorable conditions (general) discharge certificate was furnished. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, 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. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including 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 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. 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) AR20230003342 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1