IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230003732 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to honorable. 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) * Department of Veterans Affairs (VA) Letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, Section 1552(b); 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 the circumstance of his discharge is due to post-traumatic stress disorder (PTSD). He is a disabled veteran with 80 percent (%) rating. During his time in the service, he was subjected to events that affected his mental health. He has been diagnosed as having service-connected PTSD due to traumatic events that still impact him. His PTSD was diagnosed in 2013-2014. He authorized the release of any information needed to support his request. If necessary, he will appear before the Board. 3. The applicant enlisted in the Regular Army on 2 February 1977 for four years. His military occupational specialty was 13F (Fire Support Specialist). 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * 14 November 1978, for assault on or about 7 November 1978; his punishment consisted of reduction to private/E-2, forfeiture of $109.00, and extra duty * 28 November 1978, for wrongful possession of marijuana on or about 15 November 1978; his punishment consisted of forfeiture of $200.00 5. The applicant received a Letter of Reprimand, dated 25 July 1978, during Operation Night Hawk II in Georgia. He was apprehended for disorderly conduct that brought discredit on himself and all Soldiers at Fort Campbell, KY. This type of behavior would not be tolerated. 6. The applicant's immediate commander notified the applicant on 27 November 1978 that he was initiating actions to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-31 (Expeditious Discharge Program (EDP)), with an under honorable conditions (general) discharge. The reasons for the proposed action were his unwillingness to perform his duties in a military manner. It was his opinion that neither the applicant, nor the Army would benefit from continued military service. 7. The applicant acknowledged receipt of the separation notification on the same date and voluntarily consented to the discharge. He understood that he may expect to encounter substantial prejudice in civilian life if an under honorable conditions, general discharge was issued to him. He was advised of the rights available to him and the effect of waiving his rights. He elected not to submit a statement in his own behalf. 8. The applicant's commander formally recommended the applicant's separation from service under the provisions of AR 635-200, paragraph 5-31, prior to his expiration term of service. 9. On 27 November 1978, the applicant’s commander requested that rehabilitative transfer be waived. In his opinion the applicant would be a burden on any unit to which assigned. His attitude and actions demonstrate his total disregard for military authority and any rule or regulation not to his liking. Any further duty in this or another unit would serve to hazard the unit in the proper and timely accomplishment of its mission. 10. EDP Disposition Form, dated 27 November 1978, indicates the applicant had a poor attitude, lack of self-discipline, and the inability to adapt socially or emotionally. He had been counseled on various occasions for indebtedness, appearance, attitude (four times), failure to repair (twice) and disrespect (twice). A general discharge was recommended. 11. The separation authority approved the recommended discharge under the provisions of Chapter 5, AR 635-200, for failure to meet acceptable standards for continued military service. And directed the issuance of a General Discharge Certificate. 12. A Statement of Medical Condition, dated 2 December 1978, shows there had been no change in the applicant’s medical condition since his last separation examination on 28 November 1978. 13. The applicant was discharged on 11 December 1978. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Paragraph 5-31, with Separation Program Designator code JGH (by reason of EDP) and Reenlistment Code 3. His service was characterized as under honorable conditions. He completed 1 year, 10 months, and 10 days net active service. His awards include the Air Assault Badge. 14. The applicant provides a copy of his DD Form 214 and a VA letter, dated 23 January 2023, that shows his under honorable conditions (general) character of service and a combined service-connected evaluation of 80%; 50% for PTSD. 15. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his general, under honorable conditions discharge to honorable. 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 RA on 2 February 1977. * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice on 14 November 1978, for assault on or about 7 November 1978 and on 28 November 1978, for wrongful possession of marijuana on or about 15 November 1978. * Applicant's immediate commander notified the applicant on 27 November 1978 that he was initiating actions to separate him from service under the provisions of Army Regulation (AR) 635-200, paragraph 5-31 (Expeditious Discharge Program), with an under honorable conditions (general) discharge. The reasons for the proposed action were his unwillingness to perform his duties in a military manner. It was his opinion that neither the applicant, nor the Army would benefit from continued military service. * EDP Disposition Form, dated 27 November 1978, indicates the applicant had a poor attitude, lack of self-discipline, and the inability to adapt socially or emotionally. He had been counseled on various occasions for indebtedness, appearance, attitude (four times), failure to repair (twice) and disrespect (twice). A general discharge was recommended. * Applicant was discharged on 11 December 1978. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Paragraph 5-31, with Separation Program Designator code JGH (by reason of EDP) and Reenlistment Code 3. His service was characterized as under honorable conditions. c. 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), DD Form 214, VA letter and documents from his service record and 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 states the circumstances of his discharge were due to post- traumatic stress disorder (PTSD). He states he is a disabled veteran with 80 percent (%) rating. During his time in the service, he was subjected to events that affected his mental health. He has been diagnosed with service-connected PTSD due to traumatic events that still impact him. His PTSD was diagnosed in 2013-2014. He authorized the release of any information needed to support his upgrade request. e. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant is 100% service connected for PTSD. VA electronic medical records (JLV) available for review evidence a Mental Health Comprehensive Assessment dated 19 December 2014 diagnosing the applicant with PTSD. f. Another mental health evaluation, dated 5 October 2018, diagnosed the applicant with Major Depressive Disorder and PTSD. The applicant has been inconsistent with receiving mental health services, due to his fear of stigma and his social standing in his community. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence the applicant had a behavioral health condition during military service that mitigates 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 a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes. The applicant is 100% service-connected for PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. The applicant was discharged due to his poor attitude, lack of self-discipline, and the inability to adapt socially or emotionally. Available records indicate he was counseled on various occasions for indebtedness, appearance, attitude (four times), failure to repair (twice) and disrespect (twice). In addition, he received two Article 15’s for assault and wrongful possession of marijuana. Given the nexus between PTSD/Major Depressive Disorder and the use of substances to alleviate/cope with the symptoms of his behavioral health condition, the wrongful possession of marijuana is mitigated. PTSD/Major Depressive Disorder also has a nexus with avoidance, difficulty with authority, and decreased motivation, as such, his occasions of indebtedness, lack of proper appearance, attitude, failure to repair, and disrespect are mitigated by his behavioral health condition. The remaining misconduct of assault is not mitigated by any of his behavioral health conditions since none of his conditions interfere with the ability to distinguish right from wrong and act in accordance with the right. However, given the length of time since the offense, the Board may want to consider whether his BH condition outweighs his misconduct. 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 determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and the medical review, the Board considered the advising official finding sufficient evidence the applicant had a behavioral health condition during military service that mitigates his discharge. The Board noted, the opine reviewed that the nexus between PTSD/Major Depressive Disorder and the use of substances to alleviate/cope with the symptoms of his behavioral health condition, the wrongful possession of marijuana is mitigated. PTSD/Major Depressive Disorder also has a nexus with avoidance, difficulty with authority, and decreased motivation, as such, his occasions of indebtedness, lack of proper appearance, attitude, failure to repair, and disrespect are mitigated by his behavioral health condition. 2. The Board determined based on the applicant’s numerous exhibits of misconduct during his 1 year, 10 months, and 10 days net active service, there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board found insufficient evidence that demonstrated the applicant the ability to distinguish right from wrong and act in accordance with the right. The Board agreed that assault in addition to the applicant’s continued pattern of misconduct could not be outweighed due to his behavior health issues. The applicant was discharged under the Expeditious Discharge Program and was provided an under honorable conditions (General) characterization of service. The Board agreed notwithstanding the advising official opine that the nexus between PTSD/Major Depressive Disorder and the use of substances to alleviate/cope with the symptoms of his behavioral health condition, the wrongful possession of marijuana is mitigated. 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. 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 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, U.S. Code (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, USC, Section 1556, 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. Army Regulation (AR) 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. Paragraph 5-31 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least six months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003732 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1