IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005831 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable, and correction of his DD Form 214 (Report of Separation from Active Duty) to show he was medically discharged. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * U.S. Army Service Records (44 pages), dated 13 December 1972 to 29 April 1974 * Department of Veterans Affairs (VA) Form 07-3101 (VA Request for Information), dated 21 January 1975 * U.S. Marine Corps (USMC) Service Records (19 pages), dated 18 December 1975 to 5 March 1976 * Certificate of Birth, , dated * Clinical Interview with Mental Status Examination, dated 11 February 2010 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect: a. He was the victim of extreme mental, emotional, and physical abuse as a child. The military lifestyle exacerbated his existing psychological issues which plagued him since childhood. He entered the Army to improve his situation, and he was afraid to inform anyone of his psychological problems for fear of being kicked out. He felt trapped between enduring his problems or giving up all hope of a normal life. b. At the time of his discharge, he was without proper counsel. He was railroaded into signing documents which he was led to believe would solve his military problems. He was only years old, and his rights were trampled on by his chain of command. He was not informed of his rights. Nor was he rendered any sound advice. He was encouraged to sign paperwork, requesting a UOTHC, which he was told would automatically upgrade after a period of time. This impacted the rest of his life. c. In spite of numerous Articles 15 and absences directly related to his psychological issues, he was never offered any counseling or therapy. He did not have the mental ability to perform his duties which was reflected in his behavior and misconduct. He should have been evaluated which would have justified a medical discharge. d. Compelled by misguided thoughts, he attempted to redeem himself by enlisting in the USMC. His erroneous enlistment was discovered. Instead of being issued the proper administrative discharge, he was simply issued another UOTHC which was unlawful. e. He has been diagnosed with psychological issues and receives compensation from the Social Security Administration. These issues that have affected him since childhood should easily mitigate his misconduct. Additionally, he requests correction of his DD Form 214 from the USMC for the period ending 5 March 1976 to show he was administratively separated with an honorable discharge. 3. The applicant’s request for correction of his DD Form 214, for the period ending 5 March 1976 pertains to his service with the USMC. This issue is outside the ABCMR's purview and should be addressed to the Board for Correction of Naval Records. Therefore, this portion of his request will not be further addressed in this record of proceedings (ROP). 4. The applicant enlisted in the Regular Army on 6 December 1972. Upon the completion of his initial entry training, he was awarded military occupational specialty 76A (Supply Specialist). The highest rank he attained was private/E-2. 5. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following violations: a. On 13 March 1973, for unlawfully carrying a concealed weapon, on or about 13 March 1973. His punishment consisted of forfeiture of $50.00 pay per month for two months, 20 days of extra duty, and 20 days of restriction. b. On 18 July 1973, for failure to obey a lawful order and failure to report to his prescribed place of duty, on or about 12 July 1973. His punishment consisted of reduction to private/E-1, seven days of extra duty, and seven days of restriction. c. Three additional DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 21 August 1973, 4 October 1973, and 12 November 1973 are illegible. 6. Court-martial charges were preferred against the applicant on 11 March 1974 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with two specifications of being absent without leave (AWOL), from on or about 10 December 1973 until on or about 11 December 1973, and from on or about 11 December 1973 until on or about 8 March 1974. 7. The applicant consulted with legal counsel on 11 March 1974. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge for the good of the service, under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. In his request for discharge, he acknowledged his understanding that by requesting a discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. c. In his own behalf, the applicant stated, in effect, the same problems that caused him to go AWOL will cause him to leave again. He receives calls from home that things are not going well. He feels he can better support his family as a civilian. He will probably continue to receive Articles 15 which only hurt him. He would be willing to accept any kind of discharge. 8. The applicant’s immediate and intermediate commanders recommended disapproval of the applicant’s request for discharge and further recommended the charges and specifications against the applicant be referred to a special court-martial empowered to adjudge a bad conduct discharge. His immediate commander noted the applicant demonstrated total indifference to the counseling of his superiors and has been noticeably apathetic in the performance of his duties. 9. The separation authority approved the applicant's request for discharge for the good of the service on 27 March 1974 and further directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 29 April 1974 under the provisions of Army Regulation 635-200, paragraph 10-1. His DD Form 214 confirms his character of service was UOTHC, with separation program designator code 246 [discharge for the good of the service] and reenlistment code RE-3, 3B. He was credited with 1 year, 1 month, and 3 days of net active service, with 111 days of lost time. 11. The applicant provides the following: a. 44 pages of Army service records, dated 13 December 1972 to 29 April 1974, as discussed in the ROP above. b. A VA Form 07-3101, dated 21 January 1975, shows the VA submitted a request for information to the Department of the Army regarding the facts and circumstances surrounding the applicant’s UOTHC discharge. c. 19 pages of USMC service records, dated 18-December 1975 to 5 March 1976, show the applicant enlisted in the USMC on 9 December 1975. It was determined he enlisted under an alias and failed to disclose information pertinent to his enlistment. He was discharged on 5 March 1976 with an UOTHC characterization of service. d. A Certificate of Birth, dated, from. e. A Clinical Interview with Mental Status Examination, dated 11 February 2010, which shows diagnoses of Bi-polar Disorder and Anti-social Personality Disorder. 12. Discharges under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. A UOTHC characterization of service is normally considered appropriate. 13. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 14. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service to honorable and show he was medically discharged. He contends he experienced mental health conditions which mitigated his misconduct and 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 6 December 1972; 2) The applicant accepted nonjudicial punishment (NJP) on five occasions for the following violations: A) On 13 March 1973, for unlawfully carrying a concealed weapon; B) On 18 July 1973, for failure to obey a lawful order and failure to report to his prescribed place of duty; and C) Three additional DA Forms 2627-1 (Record of Proceedings), dated 21 August 1973, 4 October 1973, and 12 November 1973 which were are illegible; 3) Court-martial charges were preferred against the applicant on 11 March 1974 for two specifications of going AWOL from 10-11 December 1973 and from 11 December 1973-8 March 1974; 4) The applicant was discharged on 29 April 1974 Chapter 10-1. His character of service was UOTHC c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and available military service and medical documents records. The VA’s Joint Legacy Viewer (JLV) and civilian medical documentation provided by the applicant were also examined. d. On his application, the applicant noted mental health conditions were related to his request, as a contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence the applicant deployed to a combat environment or was diagnosed with a mental health condition during his military service. He received a Mental Status Evaluation (date illegible), and he was not diagnosed with a mental health condition, and he was found to meet retention standards. A review of JLV was void of any medical documentation, and the applicant receives no service- connected disability. The applicant provided civilian medical documentation dated 11 February 2010. The applicant completed this evaluation for Social Security Benefits after his recent release from an extended prison sentence. The applicant reported a history of behavioral health symptoms from childhood, and he was diagnosed with bipolar disorder and antisocial personality disorder. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence available to support a referral to IDES. The applicant was evaluated by a behavioral health provider while on active service, and he was found to meet medical retention standards from a psychiatric perspective. The applicant was diagnosed with bipolar disorder and antisocial personality disorder in 2010, but there is insufficient evidence he met criteria for Bipolar Disorder during his active service. 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 mental health conditions that contributed to his misconduct. In 2010, the applicant was diagnosed with Bipolar Disorder and Antisocial Personality Disorder. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions while on active service. The applicant was diagnosed with Antisocial Personality Disorder in 2010, and the evaluator noted there was evidence of this condition during the applicant’s childhood. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is some evidence the applicant was experiencing Bipolar Disorder while on active service. However, there is also evidence the applicant met criteria for Antisocial Personality Disorder during his active service. The applicant’s pattern of misconduct is consistent with Antisocial Personality Disorder, but this condition is not a mental health condition, which fails to meet the retention standards. Patterns of misconduct, disregard for rules, but a clear understanding of right and wrong are prominent features of Antisocial Personality Disorder, and this condition was often administratively separated from active service. Therefore, it is not recommended the applicant’s misconduct me mitigated, and there is insufficient evidence the applicant’s application warrants a referral to IDES. However, he contends a mental health condition resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. 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 insufficient evidence the applicant’s application warrants a referral to IDES. The Board noted the applicant had a clear understanding of right and wrong and determined there is insufficient evidence of in- service mitigating factors for the misconduct to weigh a clemency determination. The applicant provided no post service achievements or character letters of support that could attest to his honorable conduct. 2. The Board agreed the applicant was not diagnosed with a mental health condition, and he was found to meet retention standards. The applicant’s record is absent any evidence the applicant deployed to a combat environment or was diagnosed with a mental health condition during his military service. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, 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, 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. Section 1556 of Title 10, USC, 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. 3. Title 10, USC, Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent (%). 4. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Chapter 2, provides physical standards for enlistment, appointment, and induction with the purpose to ensure members medically qualified are medically capable of completing required to training, adapt to a military environment without geographical limitations, perform duties without aggravation of existing physical defects or medical conditions. b. The standards in Chapter 2 are applicable to individuals who enlist in the Regular Army - for medical conditions or physical defects pre-dating original enlistment, standards are applicable for enlistee's first 6 months of active duty. It states that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the physical standards may be separated following an evaluation by an Entrance Physical Standards Board, under the provisions of Army Regulation 635-200, Chapter 5. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states, in part: a. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The PEB-appointed counsel advises the Soldier of the Informal PEB (IPEB) findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 7. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b provides that 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. 8. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or 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. 9. 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, 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) AR20230005831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1