IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006899 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Service Treatment Records (11 pages), dated 8 March 1968 to 22 October 1968 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 8 January 1969 * letter, St. Peter’s Health Partners, dated 6 October 2022 * five statements of support, dated 26 October 2022 to 20 November 2022 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, he was erroneously discharged due to minor problems. He was very young and treated badly by his chain of command. He feels he has proven himself since his discharge, as demonstrated by the enclosed statements of support. He admits to being treated for serious mental illness which contributed to his issues on active duty. He notes traumatic brain injury (TBI) and other mental health as conditions related to his request. 3. In the processing of this case, an Army Review Boards Agency (ARBA) staff member requested the applicant's official military personnel file (OMPF) from the National Archives and Records Administration (NARA) in St. Louis, Missouri. According to the response received from NARA, there are no records under the provided social security number. Despite the lack of his OMPF, the applicant provided a fully constituted DD Form 214 for the Board to conduct a fair and impartial review of the applicant's petition. 4. The applicant enlisted in the Regular Army on 21 February 1968 for a 3-year period. Upon completing his initial entry training, he was awarded military occupational specialty 94B (Cook). 5. The applicant was discharged on 8 January 1969, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), with separation program number (SPN) 28B (unfitness) and reenlistment code RE-3, 3B. His DD Form 214 confirms is service was characterized as UOTHC. He was credited with 9 months and 1 day of net service with 48 days of lost time. 6. The applicant provides the following: a. Service Treatment Records, dated 8 March 1968 to 22 October 1968, which show the applicant sought medical care on multiple occasions for low back pain, and he was determined physically qualified for separation. b. A letter from Dr., St. Peter’s Internal Medicine, dated 6 October 2022, states the applicant is an active patient in his practice. The applicant suffers from many musculoskeletal problems which render him disabled to include, osteoarthritis, fibromyalgia, neuropathy, chronic obstructive pulmonary disease, chronic congestive heart failure, and chronic pain. c. In five statements of support, dated 26 October 2022 to 20 November 2022, the authors attest to the applicant’s good character. He is a positive man, who is loyal and faithful to his commitments. He is compassionate and trustworthy, making him an asset to any endeavor he chooses to pursue. 7. Army Regulation 635-212 states that an individual is subject to separation when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. 8. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) characterization of service. He contends he experienced mental health conditions and traumatic brain injury (TBI), which 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's official military personnel file (OMPF) from the National Archives and Records Administration (NARA) in St. Louis, Missouri was unavailable. According to the response received from NARA, there are no records under the provided social security number. Despite the lack of his OMPF, the applicant provided a fully constituted DD Form 214 for the Board; 2) The applicant enlisted in the Regular Army on 21 February 1968; 3) The applicant was discharged on 8 January 1969, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), with separation program number (SPN) 28B (unfitness) and reenlistment code RE-3, 3B. His service was characterized as UOTHC. He was credited with 9 months and 1 day of net service with 48 days of lost time. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s available military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional behavioral health documentation was provided. d. On his application, the applicant noted other mental health conditions and TBI were related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. There is insufficient evidence the applicant reported mental health symptoms while on active service. A review of JLV was void of any behavioral health documentation or documentation indicating he has a history of a service-connected TBI. He receives no service-connected disability. The applicant did not provide any civilian behavioral health documentation indicating he has been diagnosed with a mental health condition or a TBI. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence surrounding the events which resulted in the applicant’s discharge to provide an appropriate opine on possible mitigation as the result of a mental health condition or experience. In addition, there is insufficient evidence the applicant has been diagnosed with a service-connected mental health condition or TBI. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? N/A. There is insufficient evidence surrounding the events which resulted in the applicant’s discharge to provide an appropriate opine on possible mitigation as the result of a mental health condition or experience. In addition, there is insufficient evidence beyond self-report the applicant has been diagnosed with a service-connected mental health condition or TBI. However, the applicant contends he experienced a mental health condition or experience while on active service, which mitigates his discharge. The applicant’s contention alone is sufficient for consideration per the Liberal Consideration Policy. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A 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 surrounding the events which resulted in the applicant’s discharge to provide an appropriate opine on possible mitigation as the result of a mental health condition or experience. In addition, there is insufficient evidence beyond self-report the applicant has been diagnosed with a service-connected mental health condition or TBI. 2. The Board found the applicant’s character letters of support commendable attesting to the applicant’s character as trustworthy and his involvement within his community to lending a helping hand to others. However, the Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct based on the applicant’s records lack the facts and circumstances surrounding his discharge. Evidence show the applicant was credited with 9 months and 1 day of net service with 48 days of lost time. This board is not an investigative body. The Board determined despite the absence of the applicant’s separation records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a discharge upgrade. The Board agreed 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. 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. Army Regulation 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. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 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 Service 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 (PTSD); 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. 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) AR20230006899 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1