IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230005531 APPLICANT REQUESTS: reconsideration of his prior request to upgrade his characterization of service from under honorable conditions (general) to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 15 February 2023 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 5 December 1984 * Department of Veteran’s Affairs (VA) Benefits Letter, 1 April 2021 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 AR20050002127 on 8 November 2005. 2. The applicant states he is requesting his discharge be upgraded. During his time in service, he did not know that he with dealing with posttraumatic stress disorder (PTSD), insomnia, anxiety, and chronic leukemia. He states that he did not care anymore and that his wife asked him to reconsider and apply again. He now believes it is the right thing to do and that he deserves it [discharge upgrade]. He has since been receiving counseling provided by the VA. 3. The applicant provides the below listed documents: * DD Form 214, effective 5 December 1984, that shows he was discharged under honorable conditions for unsatisfactory performance in accordance with chapter 13, Army Regulation 635-200 (Personnel Separations). * Four pages of a five page letter from the Veterans Benefit Administration (VBA) that contains information pertaining to his claimed conditions of posttraumatic stress disorder (rated at 70% disabling), based on: o Anxiety o Chronic sleep impairment o Depressed mood o Difficulty in establishing and maintaining effective work and social relationships o Disturbances of motivation and mood o Forgetting directions, names, and recent events o Mild memory loss o Occupational and social impairment with reduced reliability and productivity o Suspiciousness 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 February 1979 and was awarded the military occupational specialty of Infantryman (11B10), effective 19 September 1979. b. On 3 December 1981 he reenlisted for a period of four years in the Regular Army. c. His Personnel Qualification Record shows that he was assigned to Company B, 1st Battalion, 17th Infantry Regiment from 26 December 1983 to 4 December 1984. d. The applicant’s military record contains five counseling statements, from 1 August 1984 to 1 November 1984, discussing his failure to obey lawful orders, disrespect, dereliction of duty, his overall decline in job performance. (1) On 1 August 1984, the applicant was issued a monthly counseling for the month of July that discusses the Article 15 he received for failure to obey a lawful order and how he needs to work on being less vocal to his squad members and NCO’s. (2) On 28 August 1984, the applicant was issued a counseling statement informing him that his job performance has been at a minimum due to profiles and appointments. These issues have made him unreliable and untrustworthy, and the squad cannot depend on him to work as a member of a team. It goes on to state that his attitude is that he is out for himself. The counseling also details that the applicant is failing to meet PT standards by falling out of runs, continuously fails to obey lawful orders, and fails to be at appointed places of duty at prescribed times. (3) On 8 October 1984 and 12 October 1984, the applicant was counseled in reference to his conduct and substandard duty performance. The counselor details that “the list of problems is too long to write on this counseling statement,” but indicated attached sheets are provided. The applicant’s record is void of the aforementioned attached sheets. (4) On 1 November 1984, the applicant was counseled pertaining to how his substandard duty performance has continued without improvement. The applicant was notified during this counseling that his behavior and conduct has remained unacceptable, and as a result he would be recommended for separation. e. His record also contains a field grade Article 15, for violating Article 91 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a senior noncommissioned officer on 16 June 1984. As a result, he was reduced in grade to Private (E-2) and restricted for 45 days. He did not appeal the imposed punishment. 5. The applicant’s service record is void of the medical examination conducted as a part of his separation proceedings; however, a mental evaluation dated 15 November 1984, deemed him to be mentally responsible, able to distinguish right from wrong, and able to adhere to the right. 6. On 17 November 1984, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. The specific reasons for his proposed recommendation were for his repeated displays of substandard performance, failure to respond to repeated counseling from his chain of command, failure to be in proper uniform and pay his just debts, shirking responsibility, and lack of initiative. He acknowledged receipt on the same day 7. After consulting with legal counsel, the applicant acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if an under other than honorable conditions discharge is issued to him * he may apply to the ADRB or the ABCMR for upgrading * he will be ineligible to apply for enlistment for a period of 2 years after discharge * he elected to submit matters (not included in the separation packet) 8. On 21 November 1984, the intermediate commander recommended approval of the discharge and waived the applicant’s rehabilitative transfer requirement. 9. On 21 November 1984, consistent with the chain of command recommendations, the separation authority approved the separation under the provisions of Chapter 13, Army Regulation 635-200 for unsatisfactory performance. He would be issued a general, under honorable conditions discharge. 10. Orders 334-4, dated 29 November 1984, discharged the applicant from active duty with an effective date of 6 December 1984, unless changed or rescinded. 11. The applicant was discharged under honorable conditions from active duty on 5 December 1984. His DD Form 214 shows he completed 5 years, 9 months, and 14 days of active service with no lost time. He was assigned separation code JHJ and the narrative reason for separation listed as “Unsatisfactory Performance.” It also shows he was awarded or authorized: * Good Conduct Medal * Army Service Ribbon * Overseas Service Ribbon * Marksman Qualification Badge (M16 Rifle) 12. A review of the applicant’s record confirms an administrative entry was omitted from his DD Form 214. The entry will be added to his DD Form 214 as an administrative correction and will not be considered by the Board. The Board will consider his request for an upgrade of his discharge. 13. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 14. 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. 15. By regulation, (AR 635-200) a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 16. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his prior request to upgrade his characterization of service from under honorable conditions (general) to honorable. He contends he had mental health conditions including 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 enlisted in the Regular Army on 22 February 1979; 2) The applicant’s military record contains five counseling statements from 1 August-1 November 1984 discussing his failure to obey lawful orders, disrespect, dereliction of duty, his overall decline in job performance; 3) He received a field grade Article 15 for disobeying a noncommissioned officer on 16 June 1984; 4) The applicant was discharged under honorable conditions on 5 December 1984, Chapter 13- unsatisfactory performance; 5) The applicant applied to the ABCMR for an upgrade, which was reviewed and denied in November 2005. 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) and VA documentation provided by the applicant were also examined. d. On his application, the applicant noted mental health conditions including PTSD are related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence he reported mental health conditions during his military service. On 15 November 1984, the applicant was seen for a mental evaluation in presumably in preparation for administrative separation. He was not diagnosed with a mental health condition, and he was deemed to be mentally responsible, able to distinguish right from wrong, and able to adhere to the right. e. A review of JLV provided evidence the applicant began to seek to behavioral health care for depression, anxiety, and insomnia in 2018 at the VA. He was diagnosed with service-connected PTSD in 2020 related to the applicant’s report of witnessing other Soldiers being injured or killed during training exercises. The previously reported behavioral health symptoms were considered secondary to the applicant’s diagnosis of PTSD. The applicant continues to receive service-connect disability for PTSD (70%). f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient 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 he was experiencing mental health conditions including PTSD, which mitigates his misconduct. He was diagnosed with service- connected PTSD by the VA in 2020. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing mental health conditions including PTSD while on active service, which mitigates his misconduct. He was diagnosed with service- connected PTSD by the VA in 2020. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence that the applicant has been diagnosed with service- connected PTSD related to his report of witnessing other Soldiers injured or killed during training exercises. Erratic and avoidant behaviors are often a natural sequalae to PTSD. The applicant was found to repeatedly be disrespectful and noncompliant with military standards, which could be labeled as erratic and avoidant behavior. BOARD DISCUSSION: 1. 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 PTSD 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. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to honorable. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show his character of service as honorable. 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 (ABCMR) 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, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of the 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 13 of the regulation states a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 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, 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. 5. 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. 6. 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) AR20230005531 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1