IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230001201 APPLICANT REQUESTS: in effect, reconsideration of his earlier request to upgrade his character of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. Incorporated herein by reference are military records as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999019777 on 15 July 1999. 2. The applicant states, in effect, he suffered post-traumatic stress disorder (PTSD) after losing his infant son; the stress was just too much for him, and he was unable to return to his unit and complete his enlistment. 3. A review of the applicant's service record reveals the following: a. On 11 January 1973, the applicant enlisted into the Regular Army for 3 years. Upon completion of initial entry training and the award of military occupational specialty 76P (Stock Control and Accounting Specialist), orders assigned him to a maintenance company at Fort Benning, GA; he arrived at his new unit, on or about 30 May 1973. b. Effective 15 July 1974, the applicant's leadership promoted him to specialist four (SP4)/E-4. On 9 April 1975, his unit reported him as absent without leave (AWOL); on 24 April 1975, he surrendered himself at his unit. c. On 28 April 1975, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for having been AWOL, from 9 to 24 April 1975 (15 days); punishments included a suspended reduction to private first class (PFC)/E-3. d. On 11 July 1975, the applicant accepted NJP for two UCMJ violations: the applicant had failed to report to work call at the time prescribed, and he was AWOL from 23 June until 7 July 1975 (14 days); among the punishments was a suspended reduction to PFC. e. On 8 September 1975, the applicant accepted NJP for failing to report on time for work call. On 29 September 1975, the applicant departed his unit in an AWOL status, and, effective 28 October 1975, his unit dropped him from its rolls. On 1 December 1975, the applicant surrendered himself at his unit. On 2 January 1976, while pending special court-martial charges, the applicant's unit again reported him as AWOL; the unit dropped him from its rolls that same date. f. On 1 June 1976, the Federal Bureau of Investigation arrested the applicant, and, on 3 June 1976, returned him to military control; orders subsequently reassigned the applicant to the U.S. Army Personnel Control Facility at Fort Bragg, NC. On 17 June 1976, the applicant departed Fort Bragg on excess leave. g. The applicant's separation packet is unavailable for review; however, the applicant's available service record includes his DD Form 214 (Report of Separation from Active Duty), which shows that, on 15 July 1976, the Army discharged him under other than honorable conditions. The DD Form 214 additionally reflects the following: * Item 6a (Grade, Rate, or Rank) and 6b (Pay Grade) – Private (PV1)/E-1 * Item 7 (Date of Rank) – 25 June 1976 * Item 9c (Authority and Reason) – Chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) * Item 18a (Record of Service – Net Active Service This Period) – 2 years, 10 months, and 3 days * Item 21 (Time Lost) – 271 days * Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal h. On 15 November 1998, the applicant petitioned the ABCMR, requesting an upgraded character of service. On 15 July 1999, the Board voted to deny relief; after noting the absence of the applicant's separation packet, the Board stated it presumed the applicant's discharge had been appropriate, and it did not find the applicant's evidence to be sufficiently mitigating. 4. 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. 5. 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. 6. MEDICAL REVIEW: a. Background: The applicant is requesting a reconsideration of his earlier request for upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant asserts PTSD secondary to losing his infant son as a mitigating factor in 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 the Regular Army on 11 January 1973. * On 28 April 1975, the applicant accepted nonjudicial punishment (NJP) for having been AWOL, from 9 to 24 April 1975 (15 days). * On 11 July 1975, the applicant accepted NJP for two UCMJ violations: the applicant had failed to report to work call at the time prescribed, and he was AWOL from 23 June until 7 July 1975 (14 days). * On 8 September 1975, the applicant accepted NJP for failing to report on time for work call. On 29 September 1975, the applicant departed his unit in an AWOL status, and, effective 28 October 1975, his unit dropped him from its rolls. On 1 December 1975, the applicant surrendered himself at his unit. On 2 January 1976, while pending special court-martial charges, the applicant's unit again reported him as AWOL; the unit dropped him from its rolls that same date. * On 1 June 1976, the Federal Bureau of Investigation arrested the applicant and on 3 June 1976, returned him to military control. * The applicant’s separation packet was not available for review. * Per the applicant’s DD Form 214 indicates he was discharged under AR 635-200, chapter 10 - for the good of the service, in lieu of trial by court martial, on 15 July 1976, with an UOTHC characterization of service. * ABCMR denied his petition for upgrade on 15 July 1999. 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), his DD Form 214, as well as documents from his service record. No records were available from his 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. The applicant asserted that he lost his infant son and developed PTSD. After this event, the stress was too much for him and he could not return to his unit to complete his term. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). No other medical or mental health records were provided. In addition, his available service records are notably limited. In summary, there is no evidence in his records that he had a son. There were no provided documents to substantiate the loss of his son as being the reason for his AWOL. There were also no records to indicate he experienced any mental health conditions or concerns while in the service. e. Per the applicant’s VA EHR, he is not service connected. He has not been engaged in any mental health care through the VA and he holds no mental health diagnoses with the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health records. No other medical records were provided. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had a condition or experience at the time of service that mitigated 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 PTSD secondary to the loss of his infant son. (2) Did the condition exist or experience occur during military service? Yes, he asserts the mitigating condition and experience occurred while he was in the service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While this advisor is aware the whole separation packet is not available, it is clear that he had numerous previous charges for being AWOL, and upon his return from AWOL he was immediately separated with no evidence of new charges being filed. His separation, therefore, seems to only be related to the AWOL charge, and that is what I will focus my opine on. The applicant asserted PTSD secondary to the loss of his son as the reasons for his AWOL and inability to finish his term of service. However, he did not provide any personal records (i.e., birth or death certificate, statements from family, self-authored statement, etc.), any service records, or any medical records that substantiate his assertions. There is no evidence the applicant has ever experienced a mitigating mental health condition, during service, nor since his discharge. Of note, 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 eventual separation. However, his behaviors of going AWOL are not sufficient to establish a history of said condition during active service. In summary, there is no evidence outside of self-report that supports the applicant having a mitigating condition or experience. However, per Liberal Consideration, his contention is sufficient to warrant the board’s consideration. BOARD DISCUSSION: 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 applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being no evidence of a mitigating condition or experience outside of the applicant’s own statement. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR1999019777 on 15 July 1999. 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, United States 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. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Separation authorities could characterize a Soldier's service as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and MCM, included a punitive discharge as a punishment. (1) The Soldier could submit such a request at any time after court-martial charges were preferred; commanders had to insure no one coerced the Soldier into submitting a request for discharge and that the Soldier had a reasonable amount of time to consult with counsel. If, after consulting with counsel, the Soldier chose to submit a separation request, he/she had to do so in writing, and the Soldier's counsel had to sign as a witness. (2) Once the separation authority approved the Soldier's discharge request, an undesirable discharge was normally furnished, but the separation authority could direct either an honorable or a general discharge, if warranted. 3. The MCM then in effect stated the punishment for violations of Article 86 (AWOL for 30 or more days) included a punitive discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – Approved for Discharge from Service with an Undesirable Discharge) that Soldiers approved for administrative separation with an undesirable discharge under other than honorable conditions were to be reduced to private/E-1 prior to discharge. 5. 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 former Soldier's service. 6. 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 to 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. 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. 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. 8. AR 15-185 states the ABCMR decides cases on the evidence of record; it is not an investigative body. Additionally, the ABCMR begins its consideration of each case with the presumption of administrative regularity (i.e., the documents in an applicant’s service records are accepted as true and accurate, barring compelling evidence to the contrary). The applicant bears the burden of proving the existence of an error or injustice by presenting a preponderance of evidence, meaning there is a greater than a 50 percent chance that what an applicant’s claims is true. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001201 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1