IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004473 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to honorable. Additionally, he requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 he was discharged from the Army when he was 19 years old. He joined because he wanted to serve his country, he served close to 2 years. He came in when Vietnam was coming to an end. He was young, he did not know what under honorable conditions meant, it was never explained to him. Because of the wording “under honorable conditions”, he has been denied medical and tax credit. He was under the impression that the discharge given would change to honorable. He got the G.I. Bill to go to school and became a firefighter, he has a wife and has raised four children and eight grandchildren. He can’t understand why the Army is penalizing him now. 3. The applicant enlisted in the Regular Army on 24 April 1970 for three years. His military occupation was 71B (Clerk Typist). 4. He served in Germany from 1 October 1970 through 29 November 1971. 5. The applicant’s commander stated, he had been assigned various duty assignments within the battery commensurate with his training and ability. In each instance, his performance of duty had been unsatisfactory. His military superiors and medical and psychiatric examiners agreed that further rehabilitative efforts would be useless. The applicant had been counseled on multiple occasions between 11 June 1971 and 4 November 1971. 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 8 July 1971 for without proper authority, failing to go at the time prescribed to his appointed place of duty on or about 2 July 1971 and on or about 8 July 1971; his punishment consisted of forfeiture of $35.00 per month for a period of one month * 29 July 1971 for willfully disobeying an order on or about 16 July 1971; his punishment consisted of forfeiture of $40.00 per month for a period of one month, reduction to private first class/E-3 (suspended) * the reduction to E-3, was vacated on 2 September 1971 7. On 4 November 1971, the applicant’s commander requested that a rehabilitative transfer to another unit be waived. He cited that due to personality disorders of the applicant it was believed that transfer to another unit would only be a hinderance to the best interest of the U.S. Army under the provisions of AR 635-212, paragraphs 6b (3) and 6b (5), apathy, defective attitudes, and inability to expend effort constructively and enuresis. 8. The applicant’s commander recommended the applicant appear before a board of officers convened under the provisions of Army Regulation (AR) 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability), paragraph 6b(3) and 6b(5) unsuitability, for the purpose of determining whether he should be discharged before expiration of his term of service. a. As the specific reasons for discharge, the commander noted the applicant’s apathy, defective attitudes, inability to expend effort constructively and enuresis. The discharge recommended for unfitness was not considered appropriate. Medical and related psychological problems resulted in attitude and disciplinary problems for the applicant. However, he met retention standards and there seemed to be no other grounds for his disposition. b. The chain of command recommended approval. 9. The applicant consulted with legal counsel on 5 November 1971 and was advised of the basis for the contemplated action and the effect of action taken by him in waiving his rights. He waived consideration of his case by a board of officers and personal appearance before a board of officers. He waived representation by counsel and elected not to submit a statement in his own behalf. He understood that he may expect to encounter substantial prejudice in civilian life if an under honorable conditions, general discharge was issued to him. 10. The separation authority approved the recommended discharge on 19 November 1971 under the provisions of AR 635-212, paragraph 6b(5), Separation Program Number (SPN) 46A with the issuance of a DD Form 257A (General Discharge Certificate). 11. On 29 November 1971, the Statement of Medical Condition shows that there had been no change in the applicant’s medical condition since his last separation examination on 22 October 1971. 12. The applicant was discharged on 30 November 1971. His DD Form 214 shows he was discharged under the provisions of AR 635-212 for unsuitability. He was assigned SPN 46A with Reenlistment Code 3 and 1B. His service was characterized as under honorable conditions (general). He completed 1 year, 7 months, and 7 days of net active service this period. His awards included the National Defense Service Medal. 13. AR 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop as a satisfactory Soldier, further effort would be unlikely to succeed. An undesirable discharge was normally issued. 14. 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. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge to honorable. In his application, the applicant does not contend any mental health condition or experience mitigates his discharge or relates to his request. 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 24 April 1970. * On 4 November 1971, the applicant’s commander requested that a rehabilitative transfer to another unit be waived. He cited that due to personality disorders of the applicant it was believed that transfer to another unit would only be a hinderance to the best interest of the U.S. Army under the provisions of AR 635- 212, paragraphs 6b (3) and 6b (5), apathy, defective attitudes, and inability to expend effort constructively and enuresis. * Applicant was discharged on 30 November 1971. His DD Form 214 shows he was discharged under the provisions of AR 635-212 for unsuitability. He was assigned SPN 46A with Reenlistment Code 3 and 1B. His service was characterized as under honorable conditions (general). 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), DD Form 214, and 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 states he was discharged from the Army when he was 19 years old. He joined because he wanted to serve his country, he served close to 2 years. He came in when Vietnam was coming to an end. He was young, he did not know what under honorable conditions meant, it was never explained to him. Because of the wording “under honorable conditions”, he has been denied medical and tax credit. He was under the impression that the discharge given would change to honorable. He got the G.I. Bill to go to school and became a firefighter, he has a wife and has raised four children and eight grandchildren. He can’t understand why the Army is penalizing him now. e. Due to the period of service, no active-duty electronic medical records were available for review and no hard copy medical documentation from the time of service were submitted for review. In addition, no medical documentation post-military service was submitted for review. Applicant is not service connected and there no VA electronic medical records available for review. In addition, the applicant did not assert having BH condition. f. After review of all available documentation, there is no evidence of any mitigating BH condition and the applicant did not self-assert having a BH condition. There is no evidence of any in-service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. Based on the available information provided, it is the opinion of the Agency Behavioral Health Advisor that there is no evidence to support the applicant had a BH condition during his time in service that would mitigate his discharge. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? No. The applicant does not contend any mental health condition mitigates his discharge. (2) Did the condition exist or experience occur during military service? No. The applicant does not identify any BH condition during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. There is insufficient evidence of any mitigating BH conditions. There is no evidence of any in-service BH diagnoses, and the VA has not diagnosed the applicant with any BH conditions. In addition, the applicant did not assert any BH condition as related to his request before the board. 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 the medical review the Board concurred with the advising official finding no evidence of any mitigating BH condition and the applicant did not self-assert having a BH condition. In addition, the Board agreed there is no evidence of any in-service BH diagnoses, and the VA has not diagnosed applicant with any BH conditions. The Board determined there is insufficient evidence of in-service mitigation to overcome the applicant’s characterization of service. 2. The Board found the applicant was discharged for unsuitability and was provided an under honorable conditions (General) characterization of service. The applicant completed 1 year, 7 months, and 7 days of net active service this period. The Board agreed that 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. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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, 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 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. 3. AR 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Action would be taken to separate an individual for unsuitability when it was clearly established that it was unlikely that he would 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 and they met retention medical standards. b. Paragraph 6b (2) then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). c. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 4. Army Regulation 635-5 (Personnel Separations-Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The SPN of "46A" was the correct code for Soldiers separating under the provisions of AR 635-212 by reason of unsuitability. 5. AR 635-200, sets forth the basic policy for separation of enlisted personnel. The regulation states an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that and other characterization would be clearly inappropriate. 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 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. 7. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards DRBs and Service (BCM/NRs) on 25 July 2018 [Wilkie Memorandum], 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20230004473 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1