IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004355 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) * Two self-authored letters * Veterans Affairs (VA) rating decision letter 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 AC97-08674 on 28 January 1998. 2. The applicant states: a. He is attempting to find a venue in which he can discuss issues regarding his individual activities during the period of years he was in the Army. These years involve nearly 18 months of being assigned to a National Security Agency special project in Germany. During that service, he not only did things, but was involved in doing things, that were both illegal and immoral. He has post-traumatic stress disorder (PTSD). b. He is concerned because he has gotten more bitter and more determined to act on some of his negative thoughts as the years go by. He has felt neglected, unappreciated, and disregarded because the places he has sought help either don’t want to understand or cannot understand. He expects psychotherapy to help him in dealing with the negative thoughts toward others and himself. He is willing to work at this effort; but he needs professional help to clear the path. 3. On his DD Form 149, the applicant notes PTSD is related to his request. 4. The applicant enlisted in the Regular Army on 19 November 1963. Upon completion of training, he was awarded military occupational specialty (MOS) 98C (Traffic Analyst). 5. On 9 June 1966, the applicant underwent a psychiatric evaluation. He was diagnosed with a passive-aggressive personality. The attending physician noted the applicant had become progressively more disillusioned with the service as an institution since developing arthritis of his wrist, which apparently necessitated his shifting out of his MOS. Additionally, there were significant undertones of personal conflict and depression underlying his overtly passive-aggressive behavior. He was recommended for administrative separation. 6. The applicant's immediate commander notified him on 15 July 1966, that he was being recommended for discharge under the provisions of Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability), by reason of unsuitability. As the specific reason, the commander noted he felt that the applicant could not be rehabilitated. The applicant appeared to be worried about his negative frame of mind and stated that he would voluntarily seek further psychiatric care upon his release from the Army. Additionally, the commander recommended that the applicant receive an honorable character of service. 7. The applicant acknowledged receipt of the separation notification. He declined his right to consult with counsel, nor to appear before a board of officers. He elected not to make any statements in his own behalf. 8. The separation authority approved the recommended separation on 21 July 1966, under the provisions of Army Regulation 635-209, and directed the issuance of a DD Form 257A (General Discharge Certificate). 9. The applicant was discharged on 12 August 1966. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-209, with Separation Program Number 264 (unsuitability, character, and behavioral disorders) and Reentry Code 3. His service was characterized as under honorable conditions (general). He completed 2 years, 8 months, and 24 days of net active service. 10. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. A general or an honorable discharge was considered appropriate. 11. The applicant petitioned the ABCMR requesting upgrade of his under honorable conditions (general) discharge. On 28 January 1998, the Board voted to deny relief and determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 12. The applicant provides a VA rating decision letter that shows he was granted an evaluation of 50 percent for service connection for PTSD, depression, anxiety, and suicidal thoughts. This letter is provided in its entirety for the Board’s review within the supporting documents. 13. 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. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions (general) discharge. He contends he experienced PTSD that mitigates his discharge. 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 19 November 1963; 2) On 9 June 1966, the applicant underwent a psychiatric evaluation and was diagnosed with a personality disorder; 3) The applicant was discharged on 12 August 1966 for unsuitability, character, and behavioral disorders. His service was characterized as under honorable conditions (general). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) and provided VA documentation were also examined. d. The applicant asserts he experienced a PTSD as a result of his military duties while serving in Military Intelligence in Germany. There was clear evidence the applicant was experiencing mental health symptoms while on active service. Due to changes in his military duties and change of his leadership, the applicant began to experience difficulty with motivation and depressive symptoms. His performance began to deteriorate, and he was referred for a psychiatric evaluation on 09 June 1966 by his Command. He was found to meet criteria for a personality disorder and recommended for an administrative separation. e. A review of JLV provided evidence the applicant has been treated by the VA for depression, and he has been diagnosed with service-connected disability for PTSD (50%) since 2022. 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 a condition or experience that mitigated his discharge. 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 symptoms of PTSD that resulted in his discharge. The applicant has been diagnosed with service-connected PTSD by the VA. (2) Did the condition exist or experience occur during military service? Yes, the applicant reported behavioral health symptoms while on active duty, and he also has been diagnosed with service-connected PTSD. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, there is sufficient evidence the applicant was experiencing PTSD while on active service. It is very likely the applicant’s behavior changes and mental health symptoms were a result of his changes in military duties and response trauma. It is unlikely the applicant was experiencing a personality disorder warranting a discharge. Therefore, there is sufficient evidence the applicant’s experience of PTSD mitigates his discharge status. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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 the medical advisory the Board concurred with the advising official finding sufficient evidence to support the applicant had a condition or experience that mitigated his discharge. Additionally, opine noted there is sufficient evidence the applicant was experiencing PTSD while on active service. It is very likely the applicant’s behavior changes and mental health symptoms were a result of his changes in military duties and response trauma. The Board found sufficient evidence of in-service mitigating factors for the misconduct to grant relief. As such, relief was granted to upgrade the applicant’s characterization of service 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 the applicant a DD Form 214 for the period ending 12 August 1966, showing his characterization 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. 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) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. c. 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. 4. Army Regulation 635-209, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unsuitability. Action would be taken to discharge an individual for unsuitability only when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included: (a) inaptitude; (b) character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress; (c) apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively; (d) enuresis, (e) chronic alcoholism; and (f) class III homosexuality (evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). Evaluation by a medical officer was required and, when psychiatric indications were involved, the medical officer must have been a psychiatrist, if one was available. A general or an honorable discharge was considered appropriate. 5. 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. 6. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004355 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1