IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230000241 APPLICANT REQUESTS: reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty), effective: 15 July 1974 * DD Form 214, effective 29 November 1972 * Medical Note 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 AR20050006038 on 22 November 2005. 2. The applicant states he has spent 50 years with this bad discharge on his shoulder. He now believes he contracted the disease of alcoholism for all his life. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD), and other mental health are related to his request. 4. The applicant inducted into the Army of the United States on 19 May 1971. He was honorably discharged on 29 November 1972 for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period of service. He completed 1 year, 6 months, and 11 days of net active service this period. 5. The applicant reenlisted on 30 November 1972, for 3 years. The highest grade he attained was E-4. 6. On 24 July 1973, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), for assaulting a security policeman on or about 15 July 1973; and being drunk and disorderly, on or about 15 July 1973. His punishment included reduction to the grade of E-3, forfeiture of $50.00 pay for one month, and 14 days restriction. 7. On 19 January 1974, the applicant was reported as absent without leave (AWOL) and remained absent until he was apprehended by civil authorities on 8 April 1974. 8. On 18 April 1974, the applicant underwent a medical examination. He was deemed medically qualified for administrative separation. 9. On 22 April 1974, the applicant was again reported as AWOL and remained absent until he was apprehended by military authorities on 3 June 1974. 10. Court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 11. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 12. He was discharged on 15 July 1974. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with Separation Program Designator KFS and Reentry Code RE-3B. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 3 months, and 15 days of net active service this period with 121 days of lost time. 13. 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. He has provided no evidence that would indicate the contrary. 14. The applicant petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 22 November 2005, 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. 15. The applicant provides a medical note from Aroostook Mental Health Services, Houlton, ME that shows he is receiving treatment due to his opioid use disorder. This note is provided in its entirety for the Board’s review within the supporting documents. 16. On 22 June 2023, the ABCMR staff requested that the applicant provide medical documents to support his PTSD and other mental health issues. He was advised that he could contact the doctor that diagnosed him or his Veterans Affairs Regional Office for assistance. He did not respond. 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. The applicant is applying to the ABCMR requesting reconsideration of his request for upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general) or honorable. He contends he experienced mental health conditions including PTSD which 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 Army of the United States on 19 May 1971. He was honorably discharged on 29 November 1972 to reenlist on 30 November 1972; 2) On 24 July 1973, the applicant accepted non-judicial punishment (NJP) for assaulting a security policeman and being drunk and disorderly on 15 July 1973; 3) On 19 January 1974, the applicant was reported AWOL, and he remained absent till 8 April 1974. On 22 April 1974, the applicant was again reported as AWOL, and he remained absent until he was apprehended by military authorities on 3 June 1974; 4) Court-martial charges were preferred against the applicant, but the Charge Sheet is not available for review. In addition, the applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing; 5) The applicant was discharged on 15 July 1974, Chapter 10. HIs service was characterized as UOTHC; 5) On 22 November 2005, the applicant’s request for an upgrade was reviewed and denied by the ABCMR. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and available military service and medical documents records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation provided by the applicant were also examined. d. On his application, the applicant noted mental health conditions including PTSD were related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence the applicant deployed to a combat environment or was diagnosed with any substance abuse disorder, mental health condition, or PTSD during his military service. A review of JLV was void of any medical documentation, and the applicant receives no service-connected disability. The applicant provided civilian medical documentation dated 11 January 2023 from a substance abuse counselor. The applicant has been diagnosed with an opioid addiction, and he reported a long history of alcohol and substance abuse which started during his military service. 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 he was experiencing mental health conditions including PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions including PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition including PTSD while on active service. He did provide evidence that he told a civilian provider that he began to abuse substances and alcohol during his military service. However, there was insufficient evidence the applicant has ever been diagnosed with any condition beyond an opioid addiction. The applicant did go AWOL and this type of avoidant behavior can be a sequalae to PTSD, but this is not sufficient to establish a history of a PTSD during active service. In addition, there is no nexus between PTSD/substance abuse and assault of a security police officer given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD or substance abuse; 2) PTSD and substance abuse do not affect one’s ability to distinguish right from wrong and act in accordance with the right. Lastly, there is insufficient evidence to provide a full opine in the absence of the applicant’s separation packet. However, the applicant contends mental health conditions resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for 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 insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. The Board noted in the medical opine, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition including PTSD while on active service. The Board determined based on the evidence provided there is no nexus between PTSD/substance abuse and assault of a security police officer given that: 1) this type of misconduct is not part of the natural history or sequelae of PTSD or substance abuse; 2) PTSD and substance abuse do not affect one’s ability to distinguish right from wrong and act in accordance with the right. 2. The Board agreed there is insufficient evidence of in-service mitigation to overcome the misconduct. The Board noted, the applicant provided no post-service achievements or character letters of support that could attest to his honorable conduct to weigh a clemency determination. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation 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 a mental health condition. The Board determined the applicant’s service record exhibits numerous instances of multiple AWOLS during his second enlistment period for 1 year, 3 months, and 15 days of net active service this period with 121 days of lost time. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board found reversal of the previous Board determination is without merit, therefore, relief was denied. 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 AR20050006038 on 22 November 2005. 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. 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 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 3. 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. 4. 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. 5. 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. 6. 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) AR20230000241 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1