IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230000905 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to honorable * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Four letters of support * Letter from applicant's behavioral health provider * Extract from applicant's civilian medical treatment records * Article title, Adult Diagnostic and Functional Outcomes of DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) Disruptive Mood Dysregulation Disorder * Description of Bipolar Disorder FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he is requesting this upgrade due to issues related to post-traumatic stress disorder (PTSD) and existing mental health issues; he only recently discovered the Board reviewed cases based on service-incurred PTSD. He provides additional details in a self-authored statement: a. The applicant summarizes his background and, after entering the Army, he was assigned to a military police (MP) company within the U.S. Army Military District of Washington (MDW). While there, he performed routine patrol and gate guard duties; ultimately, his leadership selected him for the Special Response Team, and his duties included providing security for notable public figures like the President of the United States, members of the President's cabinet, and foreign dignitaries. In January 1982, the applicant attended Primary Leadership Course (PLC), and the course cadre named him to the Commandant's List. b. Later, in January 1982, he suffered a tragic and life-altering experience when an airplane crashed into the Potomac River; he had to help recover bodies, and he notes only five survived the crash. This was his first contact with a dead person, outside of a funeral home, and seeing deceased passengers still strapped to their seats, their bodies deformed, and some with clothes torn off, had an adverse effect on him. c. The applicant started having dreams of seeing dead bodies and, to self-medicate, he abused alcohol and smoked marijuana; his life took a dramatic turn, and he found himself acting out in severely erratic and anti-social ways. His behavior ultimately led to his chain of command disciplining and administratively discharging him. d. When he returned home, the applicant decided to focus on eliminating his substance abuse problems; he attended church and, while he did not become religious, he found he was able to curb his substance dependency. Nonetheless, he still had mental health issues to cope with. e. A local police department hired the applicant, he married, and he and his wife raised three children. He remained employed by the police department for over 22 years, and served as a patrolman, detective and Special Response Team commander. After this, he was a Deputy County Sheriff for another 12 years, ultimately retiring as a sergeant. f. The applicant's primary care doctor diagnosed him with depression and prescribed medications. He also started one-on-one therapy to further address his behavioral health concerns, and this was when the therapist diagnosed him with Bipolar Disorder, PTSD, and Disruptive Mood Dysregulation Disorder; (he has included information about these conditions for the Board's consideration). As a result of the steps he has taken, the applicant has noticed improvements in his life. g. Along with the success he achieved at work, the applicant has been active within his community; he was a "Graduated Driver's Licensing Program" instructor, where he has been teaching teenagers how to perform skid recoveries while driving. He is also the president of a charity that raises money for toys to be given to less fortunate children during the holidays, and, lastly, he has been coaching a Peewee Football team. h. In closing, the applicant asks the Board to review his military service prior 13 January 1982 (the date of his traumatic experience) and see that he became a completely different person after that event; additionally, at the time the Army separated him, it did not recognize or place emphasis on the treatment of mental health issues. The applicant affirms he does not blame the Army for his adverse separation, and he accepts responsibility for his actions; while he still struggles with PTSD and his other behavioral health concerns, he is fortunate in that he has access to the resources he needs to address them. 3. The applicant provides an extract of his civilian treatment records, which reflect diagnoses of Disruptive Mood Dysregulation Disorder, Bipolar Disorder, Generalized Anxiety Disorder, Major Depressive Disorder and PTSD; with his medical records, he includes articles that describe Bipolar Disorder and Disruptive Mood Dysregulation Disorder. The applicant additionally submits the following: a. A letter from his behavioral health provider, which briefly details the traumatic exposures that caused the applicant's PTSD and identifies the medications currently prescribed. b. Four letters of support from two former fellow Soldiers, a former mayor of the community in which the applicant served as a policeman, and a friend and former coworker who is now the community's Chief of Police. (1) Both former Soldiers describe the applicant as a "model Soldier" who had had a "perfect career" until the January 1982 plane crash. After this traumatic event, the applicant's behavior and work performance noticeably deteriorated; ultimately, the unit took action and administratively separated him. Since his discharge, the applicant has spent decades serving his community as a law enforcement officer, and he has been active in a number of charitable organizations. Both recommend the Board grant the applicant's request for an honorable character of service. (2) The former mayor and the Chief of Police provided letters describing the applicant a dedicated public servant who gave back to the community through such programs as, "Cops for Kids" and "Graduated Driver's Licensing." The former mayor wrote, "[Applicant] served honorably in service to his community, and we are a better community for it." 4. A review of the applicant's service record reveals the following: a. On 16 April 1980, the applicant enlisted into the Regular Army for 3 years; upon completion of initial entry training and the award of military occupational specialty 95B (Military Police), orders assigned him to Fort Myer, VA, and he arrived on 2 August 1980. b. Between June and November 1981, the MDW Deputy Chief of Staff, Operations (DCSOPS) awarded the applicant three letters of appreciation for his role in security operations for the Vice President of the United States and two foreign dignitaries. Effective 11 December 1981, the applicant's leadership promoted him to specialist four (SP4)/E-4. c. On 7 January 1982, the MDW DCSOPS recognized the applicant for providing personal security for the First Lady; on 11 January 1982, the MDW Commanding General awarded the applicant a Department of the Army (DA) Certificate of Achievement for outstanding duty performance while participating in security for the Conference of American Armies. d. From 26 February to 19 March 1982, the applicant attended PLC; his DA Form 1059 (Service School Academic Evaluation Report) shows he "Exceeded Course Standards," and the cadre rated him as "Superior" for leadership skills, contribution to group work, and research ability. The report stated that the applicant, "finished the course in the top 20% of the class and, as such, was placed on the Commandant's List." e. On 15 March 1982, the applicant's company commander awarded him a Certificate of Achievement for the applicant's efforts ahead of the Annual General Inspection. On 27 April 1982, the applicant's commander awarded him a letter of commendation for finishing PLC on the Commandant's List. Between 3 June and 6 July 1982, the applicant received two more letters of appreciation from the MDW DCSOPS for providing security support. f. On 7 December 1982, the applicant's command preferred court-martial charges against the applicant for Uniform Code of Military Justice (UCMJ) violations. The associated DD Form 458 (Charge Sheet) lists the following charges: * Article 80 (Conspiracy) – on 27 July 1982, the applicant conspired with another Soldier to wrongfully appropriate a handheld portable radio, valued at $225, and a circular fan, of a value of $55 * Article 121 (Larceny), two specifications – on 10 June 1982, the applicant stole an emergency light, with a value of $150; on 27 July 1982, he stole the above-mentioned handheld portable radio and a circular fan * Article 134 (General Article – Unlawful Entry) – On 10 June 1982, the applicant unlawfully entered a military police investigator's vehicle g On 21 December 1982, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he stated no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He did not indicate whether or not he elected to submit statements in his own behalf. h. On 30 December 1982, the Staff Judge Advocate (SJA) prepared a legal review of the applicant's case and separation request. (1) The SJA outlined the facts, stating that, on 10 June 1982, the applicant entered an unmarked MP vehicle and stole a red emergency 'Kojack' light, valued at $150.00. On 27 July 1982, he took a portable handheld radio and a circular fan from one of the gate shacks. All property was recovered after the unit's First Sergeant ordered the accused and the co-accused to return the property. (2) The SJA noted the applicant's chain of command had all recommended approval of the applicant's separation request with an under other than honorable conditions character of service. i. On 30 December 1982, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; additionally, the separation authority ordered the applicant's reduction to the lowest enlisted grade. j. On 6 January 1983, orders separated the applicant under other than honorable conditions; his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 months, and 21 days of his 3-year enlistment contract. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the Army Service Ribbon, Driver and Mechanic Badge with Driver-W (Wheeled Vehicle) Component Bar, Noncommissioned Officer Professional Development Ribbon, and three marksmanship qualification badges. k. On 27 June 1988, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. (1) The applicant argued his discharge was inequitable because four persons had been involved but only two (including the applicant) were charged. That other person charged was the real perpetrator, while the applicant and the other three were simply present. The applicant pointed to his otherwise exemplary service record, and he opined the commander was punishing him and his co-accused for the problems the unit was having. (2) On 18 January 1989, the ADRB unanimously voted to deny relief; the ADRB noted the applicant had had some positive achievements, but the seriousness of his misconduct overrode those accomplishments. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 7. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of under other than honorable conditions discharge to an honorable character of service. The applicant contends his misconduct was mitigated by PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 16 April 1980. * On 7 December 1982, the applicant's command preferred court-martial charges against the applicant for the following charges: * Article 80 (Conspiracy) – on 27 July 1982, the applicant conspired with another Soldier to wrongfully appropriate a handheld portable radio, valued at $225, and a circular fan, of a value of $55. * Article 121 (Larceny), two specifications – on 10 June 1982, the applicant stole an emergency light, with a value of $150; on 27 July 1982, he stole the above- mentioned handheld portable radio and a circular fan * Article 134 (General Article – Unlawful Entry) – On 10 June 1982, the applicant unlawfully entered a military police investigator's vehicle * On 21 December 1982, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10, AR 635-200. His request was approved. * The applicant was discharged on 6 January 1983 under other than honorable conditions. * The applicant was previously denied by the ADRB on 18 January 1989. 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, ABCMR Record of Proceedings (ROP), four letters of support, letter from applicant’s behavioral health provider, extract from applicant’s civilian medical records, article about disruptive mood dysregulation disorder, description of bipolar disorder, DD Form 214, as well as other documents from his service record and separation. 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. The applicant asserts that PTSD and existing mental health issues mitigate his discharge. There were no medical records provided for review, from his time in service. Hence, there is no current evidence that the applicant held a diagnosis, or engaged in any mental health care, while he was active duty. Of note, between January of 1982 and March of 1982, the applicant received numerous letters of appreciation, recognitions, accolades, and achievements related to both his MOS and a military course. This performance appears in stark contrast to the misconduct he was charged with shortly thereafter (December of 1982), which does suggest a significant change in behavior. In his self-authored statement, the applicant shares his exposure to a potentially traumatic event (the plane crash into the Potomac River January 13, 1982). The applicant shares the difficult things he saw and helped with, and the impact this had on his mental health and functioning (sleep loss, nightmares, increased use of alcohol to self-medicate, use of THC, anti-social, acting out with erratic behavior). Letters of support from his peers also speak to the change in his behavior after the plane crash, as well as the successful life he’s led since his discharge. e. The applicant is not service connected and has no record of mental health engagement through the VA, though given his discharge characterization, he would not typically receive benefits and/or care. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available that include mental health diagnoses. Applicant’s medical record from Baptist Healthcare System has an active problems list that includes PTSD, major depressive disorder (MDD), single episode, in partial remission, and bipolar disorder, in partial remission, most recent episode mixed (BPAD). However, minimal data outside of the diagnosis was available. The applicant did supply some civilian medical records that have him diagnosed with BPAD, current episode mixed, PTSD chronic, Generalized Anxiety Disorder (GAD), MDD, and disruptive mood dysregulation disorder. He also supplied a letter from his provider, an APRN, who noted that he has been diagnosed with PTSD, MDD, mood disorder, and GAD. The letter from his provided (dated in 2022) states that the applicant has attributed his symptoms, at least in part, to the airplane crash (as she does note other traumatic events). In his self-authored statement, he reiterates the above information. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is some evidence that the applicant experienced a trauma and likely some symptoms of PTSD during his time in service, though he was never formally diagnosed or seen by mental health while on active duty. The applicant has since been diagnosed with PTSD, as well as other potentially mitigating conditions (such as GAD, BPAD, and other mood related disorders). However, while these conditions are potentially mitigating, his misconduct would not typically be considered mitigatable. 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 and “existing mental health concerns” as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes. The applicant asserts he was experiencing a mitigating condition during his time in service (PTSD). (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD at the time of offense/discharge. This assertion alone is worthy of consideration by the Board. There is insufficient evidence that the applicant was diagnosed or treated for a psychiatric condition while on active duty. Though, he does currently hold diagnoses for PTSD, GAD, MDD, BPAD and disruptive mood dysregulation disorder. Disruptive mood dysregulation disorder, if an accurate diagnosis, would in theory have been present in childhood. However, there is no evidence symptoms of this diagnosis (typically seen as temper outbursts) were present during his misconduct or time in service. People with PTSD and/or BPAD can experience impulsive, self-destructive, and risk-taking behaviors and if a psychotic episode was present during his time in service, then it’s possible he may not have known the difference between right and wrong. However, there is no evidence that he was diagnosed with or experiencing bipolar symptoms, let alone a psychotic episode. If his asserted PTSD symptoms were present at the time of his misconduct, they do not typically affect one’s ability to distinguish right from wrong and act in accordance with the right. Also, there is no nexus between his reported mental health conditions and committing larceny, conspiracy and unlawful entry. This misconduct is not part of the natural history or sequelae of his reported mental health conditions. g. Of note, while PTSD does not mitigate his misconduct, it was evident from his self- authored statement, letters of support, and his service record that his behavior did drastically shift after the trauma exposure and for a short period he was coping in ways that were incongruent to the type of soldier he had been before the trauma, and was not reflective of the kind of public service professional he became. This advisor would recommend the board consider clemency in this case. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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 BH Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Although the applicant has provided evidence in support of clemency, the Board found the misconduct outweighed the evidence of post-service accomplishments and community service. Based on a preponderance of evidence, the Board determined the character of service the applicant 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e., bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to give the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier made his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 4. The Manual for Courts-Martial, in effect at the time, showed punitive discharges were among the maximum punishments for violations of Article 81 (Conspiracy to Commit Wrongful Appropriation of Property Valued at more than $100), Article 121 (Larceny of Property Valued at more than $100), and Article 134 (General Article – Unlawful Entry). 5. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service Under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 6. 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 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. 7. 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. 8. 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. 9. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, a panel of the Board or by the Director of ABCMR may authorize a request for a hearing. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000905 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1