IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230005089 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his discharge under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 27 February 2023 * 101st Airborne Division Air Assault School Certificate of Training, 4 February 1981 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 November 1982 * DD Form 215 (Correction to DD Form 214), 21 June 1984 * VA Form 20-0995 (Decision Review Request-Supplemental Claim), 16 February 2023 * VA Form 21-526EZ (Application for Benefits), 16 February 2023 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 AC91- 07787 on 2 December 1992. 2. The applicant states, in effect: a. His has a diagnosis for post-traumatic stress disorder (PTSD) and suffers from emotional trauma from violence during training as well as a hearing impairment. b. He was treated at the Veterans Administration from 1985 to 1988. 3. The applicant provided copies of: a. His DD Form 149 application with a self-authored statement. b. Training Certificate, 101st Airborne Assault School, 4 February 1981, showing he completed training. c. His DD Form 214 and DD Form 215. d. A VA Form 20-0995, 16 February 2023, application for VA benefits. e. A VA Form 21-526EZ, supplemental claim for VA benefits. 4. A review of the applicant's available service records shows: a. On 4 April 1980, he enlisted in the Regular Army for 3 years at age 19. b. He was subsequently assigned to Company C, 1st Battalion, 503rd Infantry, Fort Campbell. c. Personnel Action Forms (DA Form 4187) show his status changed: * on 19 July 1982, from present for duty (PDY) to absent without leave (AWOL) * on 18 August 1982, from AWOL to dropped from the rolls (DFR) * on 6 October 1982, from DFR to PDY d. A DA Form 458 completed by his unit upon his DFR status, shows court-martial changed were preferred against him on 26 August 1982 for one specification of AWOL from 19 July 1982 to an unspecified date. e. The available service record is void of the facts and circumstances surrounding the applicant’s discharge from the U.S. Army. Additionally, it does not contain the applicant’s request for discharge nor the chain or command’s recommendations and/or the separation authority’s approval for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service-in lieu of trial by court-martial. f. A DA Form 31, 8 November 1982, shows he was granted excess leave at his own request and for the convenience of the government. g. Orders 312-78, issued by Headquarters, U.S. Army Training Center and Fort Dix, New Jersey, 8 November 1982, reassigned him to U.S. Army Transfer Point for separation processing. These orders show he was processed under the provisions of Army Regulation 635-200 with a discharge date of 12 November 1982. h. On 12 November 1982, he was discharged from active duty with an under other than honorable conditions characterization of service and a program separation code of KFS. His DD Form 214 shows he completed 2 years, 3 months, and 10 days of net active service during this period with 91 days of time lost from 4 July 1982 to 5 October 1982. He had excess leave of 35 days from 8 October 1982 to 12 November 1982, 14 February 1984 to 14 March 1984, 23 March 1984 to 26 March 1984, and 30 March 1984 to 5 June 1984. He had 39 days excess leave from 11 June 1984 to 19 July 1984 and was not awarded or authorized any personal decorations. His grade/pay grade at separation was private/E-1. i. A DD Form 215 issued to him changed his Reenlistment Eligibility code to RE-3, RE-3B, and RE-3C. j. On 6 August 1992, the Army Discharge Review Board denied his request for an upgrade of his discharge, finding it was both proper and equitable. k. On 11 December 1992, (ABCMR Docket Number AC91-07787), the Board denied his requests for upgrade of his discharge. The records of proceedings note he received NJP which are not contained in his service records. These proceedings show he was punished under the provisions of Article 15, of the UCMJ on 7 May 1981 for wrongful possession of marijuana, for wrongful possession of a knife with a blade in excess of 3 inches; for wrongful possession of ammunition; and for disrespect to a superior officer. His punishment consisted of reduction to the grade of private/E-1 and forfeiture of $250.00. The DA Form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ)) is not contained in the available records. 5. On 16 May 2023, the Director, Case Management Division, requested the applicant provide medical documents in support of his application. The applicant has not provided a response to date. 6. 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. 7. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his previous request for upgrade of his discharge under other than honorable conditions to honorable. He contends PTSD and emotional trauma during training mitigate his misconduct. 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 Regular Army 4 April 1980. * Personnel Action Forms (DA Form 4187) reflect that he was marked as AWOL 19 July 1982, DFR on 18 AUG 1982, and his status changed from DFR to PDY on 6 October 1982. * A DA Form 458 completed by his unit upon his DFR status, shows court-martial changed were preferred against him on 26 August 1982 for one specification of AWOL from 19 July 1982 to an unspecified date. * The rest of the applicant’s separation packet is missing from his record, though his DD 214 specifies that he was discharged 12 November 1982, with an under conditions other than honorable discharge, under AR 635-200, chapter 10, in lieu of trial by court marital. * Applicant previously requested an upgrade from the Army Discharge Review Board (ADRB). The request was denied on 6 August 1992 as his discharge was found proper and equitable. * On 11 December 1992, (ABCMR Docket Number AC91-07787), the Board denied his requests for upgrade of his discharge. The records of proceedings note he received NJP which are not contained in his service records. These proceedings show he was punished under the provisions of Article 15, of the UCMJ on 7 May 1981 for wrongful possession of marijuana, for wrongful possession of a knife with a blade in excess of 3 inches; for wrongful possession of ammunition; and for disrespect to a superior officer. c. Review of Available Records Including Medical: 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), VA Form 20-0995 (Decision Review Request – Supplemental Claim), VA From 21-526EZ (Application of Benefits), DD 214 and other documents from his service record. The applicant’s separation packet was not fully available. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV), though minimal data was available for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. This applicant did not clarify on his current application what mitigating factors he asserts; however he did include his VA Supplemental Claim document where he reported PTSD, hearing impairment, and suffering emotional trauma from violence during training. Also, previously submitted application material were summarized in the ROP. There are no electronic health records (EHR) from his time in service (given the years he served) and the applicant did not supply any other medical or mental health records, nor were any included in his service record. There is no indication the applicant was ever diagnosed with a mental health condition, nor that he received mental health care. There is also no evidence of any violence during his training, and the only details given of the self-report was that he “suffers from emotional trauma from violence during training.” e. Per the applicant’s EHR, the applicant has had minimal engagement with VA care since his discharge. However, given his discharge characterization, he would not typically receive benefits through the VA. He has had a few encounters with the Veteran Justice Program (Health Care for Reentry Veterans’ Program). He has not received any mental health diagnoses through the VA. The applicant is not service connected. The applicant did not provide any other medical or mental health records to support is assertion. In his included application to the VA for Decision Review Request: Supplemental Claim, he stated he received care at the VA hospital in in 1985, 1986 1987 and 1988. He did not specify what kind of care, and he did not include any health records. There is no current evidence the applicant holds any mental health diagnoses. f. It is the opinion of the Agency Behavioral Health Advisor that there is no evidence outside of self-report to indicate the applicant had a mitigating condition or experience, and no evidence the applicant has ever been diagnosed with any mental health condition, to include PTSD. This applicant’s full separation packet is missing, but based court martial charges just prior to separation, this advisor presumes this documentation is accurate. This advisor, with caution, will provide an opine based on the available information. 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 PTSD as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts PTSD and emotional trauma during training. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant did not specify on his application what he was asserting or requesting but did include VA forms that listed PTSD and emotional trauma as experiences he’s claiming. Hence, this advisor believes the applicant is stating PTSD was a mitigating factor. There is no medical or mental health documentation from his time in service. There is minimal data available in his EHR since his discharge, no mental health conditions listed, and the applicant did not include any additional records. The applicant did not provide any evidence, outside of self-report, that he experienced trauma or violence. In addition, the applicant has no history of any mitigating conditions. g. Of note, in his board file from 1992, the ROP states he had these other charges (Article 15, of the UCMJ on 7 May 1981 for wrongful possession of marijuana, for wrongful possession of a knife with a blade in excess of 3 inches; for wrongful possession of ammunition; and for disrespect to a superior officer). However, these charges are not present in his current file. And while this advisor is also aware the whole separation packet is not available, we do know that court martial charges were initiated for going AWOL, and upon his return from AWOL he was immediately separated with no evidence of new charges being filed. His separation, therefore, seems to be only related to the AWOL charge, and that is what I will focus my recommendation on. AWOL can be an avoidance behavior, consistent with the natural history and sequalae of several mental health conditions, including trauma. There is a nexus between PTSD and the misconduct that led to his court martial and eventual separation. The previous charges, (possession of marijuana, knife, ammunition, and disrespect to a superior officer), if relevant to his discharge, however, would not be fully mitigatable. Substance use and related behaviors (such as possession), is often a self- medicating behavior, used to avoid and mask symptoms, and this can be associated with the natural history and sequelae PTSD. Increased irritability secondary to PTSD could also contribute to disrespectful behavior. However, there is no nexus between illegally possessing weapons and PTSD. In summary, there is insufficient evidence the applicant ever experienced a mitigating condition, however per Liberal Consideration his contention is sufficient to warrant 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding no nexus between illegally possessing weapons and PTSD. In addition, there is no evidence outside of self-report to indicate the applicant had a mitigating condition or experience, and no evidence the applicant has ever been diagnosed with any mental health condition, to include PTSD. 2. Based on the medical opine, the Board agreed there is no medical or mental health documentation from his time in service. There is minimal data available in his EHR since his discharge, no mental health conditions listed, and the applicant did not include any additional records. 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 outside of self-report, that he experienced trauma or violence. In addition, the applicant has no history of any mitigating conditions to support a discharge upgrade. The applicant provided no post service achievements or character letters of support attesting to his honorable conduct that could be weighed by the Board for clemency. Furthermore, 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. Based on this, the Board denied relief. 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 AC91-07787 on 2 December 1992. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3-7 provided: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Only the honorable characterization may be awarded a member upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. (2) 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 10 stated a member who has committed an offense or offenses, the punishment of which under the UCMJ and the Manual for Court Martial, 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final actions by the court-martial convening authority. (1) A medical examination is not required but may be requested by the member under Army Regulation 40-501 (Medical Services – Standards of Medical Fitness), chapter 10. A member that requests a medical examination must also have a mental status evaluation before discharge. (2) Commanders will insure that a member will not be coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time (not less than 72 hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the member concerning: * the elements of the offense or offenses charged * burden of proof * possible defenses * possible punishments * provisions of Chapter 10 * requirements of voluntariness * type of discharge normally given under provisions of Chapter 10 * rights regarding the withdrawal of the member's request * loss of Veterans Administration benefits * prejudice in civilian life because of the characterization of the discharge (3) The separation authority will be a commander exercising general court- martial jurisdiction or higher authority. However, authority to approve discharges in cases in which a member has been AWOL for more than 30 days and has been dropped from the rolls of his or her unit as absent in desertion, and has been returned to military control, may be delegated to the commander exercising special court-martial convening authority over the member. (4) An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the service. However, the separation authority may direct a general discharge certificate, if such is merited by the member's overall record during the current enlistment. 3. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "KFS" corresponded to "For the good of the service – in lieu of court-martial," and the authority, Army Regulation 635-200, chapter 10. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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. 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 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. 7. Section 1556 of Title 10, United States Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005089 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1