IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20230005695 APPLICANT REQUESTS: in effect, * a copy of his birth certificate * a copy of his DD Form 214, Report of Separation from Active Duty * reconsideration of his previous request to upgrade the characterization of his service from under honorable conditions (general) to honorable APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149, Application for Correction of Military Record * Birth Certificate Application 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 AR20050016810 on 6 July 2006. 2. The Board will not consider the applicant’s request for a copy of his DD Form 214. a. The applicant will be provided with a copy of his DD Form 214, as this document was resident in the applicant's military record. b. The Board will not consider the applicant's request for a copy of his birth certificate. The Board is not a record custodian, and as this document is not in his military record, this portion of his request is outside the purview of the Board. 3. The applicant stated, in his previous request, that at the time of his discharge he was dealing with a disability, and he had an alcohol problem. He further contends that he served his country and met the requirements for an honorable characterization of service. 4. A review of his record shows the applicant enlisted in the Regular Army on 13 September 1976. During his period of service, he held the military occupational specialty of 94B, food service specialist. The highest grade held was private first class. 5. The applicant's records reveal a disciplinary history that includes - a. His acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between 4 May 1977 and 19 May 1978 for the following: Failure to be at his appointed place of duty on seven occasions and disobeying lawful orders from a noncommissioned officers on three occasions. b. The applicant was also counseled on numerous occasions by his entire chain of command, from first cook to the battalion commander. He received a rehabilitative transfer and served under at least three different unit commanders. 6. On 17 May 1977, he underwent a mental hygiene consultation. The examination and review of his history revealed no indication of psychiatric disorder that would prevent administrative action. He was rational, coherent, and oriented to time, place, and person. There was no indication of psychosis or severe neurosis at that time. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. He met retention standards under the provisions of Chapter 3, Army Regulation 40-501, Medical Services-Standards of Medical Fitness. The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and he had the mental capacity to understand and participate in board proceedings. The Division Psychiatrist recommended the applicant be separated as rehabilitation efforts were not likely to bring about significant changes in attitudes or behavior. 7. On 21 June 1978, the unit commander notified the applicant that action was being initiated to separate him for unsuitability/misconduct. The commander stated, in effect, that since being assigned to Company B, 801st Maintenance Battalion, Fort Campbell, KY, the applicant had been a constant source of problems and he had established a long record of acts of misconduct which included four Article 15s and numerous counseling statements. All of the counseling sessions and all other efforts to rehabilitate him failed. The applicant exhibited a negative attitude and had been uncooperative during counseling sessions. He failed to demonstrate the initiative, motivation, or responsibility required of a Soldier. This form indicates that the applicant refused to sign. 8. On 23 June 1978, he was advised by counsel of the pending separation action against him under the provisions of Chapter 14, Army Regulation (AR) 635-200, Personnel Separation – Enlisted Personnel, based on misconduct. He did not make an election. However, his record contains Administrative Separation Board proceedings which show the applicant was recommended for discharged from the service because of misconduct with the issuance of a general discharge. 9. On 14 September 1978, the separation authority approved the applicant's discharge under the provisions of AR 635-200, Chapter 14 and directed that he be issued a General Discharge Certificate. 10. The record is void, and the applicant did not provide evidence related to a disability or an alcohol problem. 11. The applicant was discharged on 19 September 1978. His DD Form 214 shows he received an under honorable conditions (general) characterization of service, and he was discharged in accordance with AR 635-200, paragraph 14-33b, misconduct. He completed 2 years, and 10 days of creditable active service. He received a separation code of JKA and a reentry code of 3. 12. The ABCMR previously considered the applicant's request in Docket Number AR20050016810 on 6 July 2006. The Board determined that 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 for correction of the records of the individual concerned. 13. Army Regulation 635-200, chapter 14 set forth the basic authority for the separation of enlisted personnel for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record. A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter 14. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. 15. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 19 September 1978 discharge characterized as under honorable conditions (general) and a copy of his birth certificate. c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 13 September 1976 and was discharged 19 September 1978 under authority provided in paragraph 14-33b of AR 635-200, Personnel Separations – Enlisted Personnel: Frequent incidents of discreditable nature with civil or military authorities. His separation code JKA denotes “Pattern of Misconduct.” d. His prior request for a discharge upgrade was denied by the ABCMR on 6 July 2006 (AR20050016810). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. The only new document submitted with the application is a birth certificate application. f. On a DD Form 293 the applicant signed on 7 December 2011, the applicant stated his reason for an upgrade: “Because my record was not that bad, and I was dealing with a disability and an alcohol problem!” g. His numerous negative actions as noted in the ROP for AR20050016810: “The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions between 4 May 1977 and 19 May 1978 for the following: Failure to be at his appointed place of duty on seven occasions and disobeying lawful orders from a noncommissioned officer on three occasions. The applicant was also counseled on numerous occasions by his whole chain of command, from first cook to the battalion commander. He received a rehabilitative transfer and served under at least three different unit commanders h. The applicant underwent a mental health evaluation on 17 May 1997 after which the division psychiatrist recommended his separation from the service. “RECOMMENDATION: Separation is recommended as rehabilitation efforts are not likely to bring about significant changes in attitudes or behavior. 1. This individual was referred to the Mental Hygiene Consultation Service for psychiatric clearance pursuant to administrative action under AR 635-209 Direct examination and review of his past history reveal no indication of psychiatric disorder that would prevent administrative action. He is rational, coherent and oriented to time, place, and person. There is no indication of psychosis or severe neurosis in this man at this time. 2. There are no disqualifying mental defects sufficient to warrant disposition through medical channels. This individual does meet retention under the provisions of Chapter 3, AR 40-501. 3. [Applicant] was and is mentally responsible, able to distinguish right from wrong and to adhere to the right and has the mental capacity to understand and participate in board proceedings.” i. JLV shows he has been awarded a single VA service-connected disability rating of 70% for PTSD awarded in 2004. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: PTSD (2) Did the condition exist or experience occur during military service? YES (3) Does the condition or experience actually excuse or mitigate the discharge? YES: As the applicant’s PTSD is associated with avoidant behaviors and resistance to authority, it fully mitigates his multiple failures to repair and disobeying lawful orders from noncommissioned officers. 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 medical review, the Board notwithstanding the advising official finding the applicant’s PTSD awarded in 2004 is associated with avoidant behaviors mitigates his disobeying lawful orders and failure to repair. 2. The Board noted the applicant provided no post service achievements or character letters of support that could attest to his honorable conduct for the Board to weigh as clemency. The Board found the applicants three rehabilitation transfers and his inability to successfully complete them could not be mitigates based on his numerous exhibits of misconduct. The applicant was discharged for pattern of misconduct and was provided an under honorable conditions (General) characterization of service. 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. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be completed to more accurately depict the military service of the applicant 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20050016810 on 6 July 2006. 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. ADMINISTRATIVE NOTES: Provide the applicant with the copy of the DD Form 214. 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 Army Board for Correction of Military Records (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. Army Regulation 635-200, Personnel Separations-Enlisted Personnel, sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. The separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record. A discharge under other than honorable conditions is normally considered appropriate for Soldiers discharged under this chapter. 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. 3. AR 15-185, Army Board for Correction of Military Records, 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. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005695 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1