IN THE CASE OF:   

BOARD DATE:  15 April 2021 

DOCKET NUMBER:  AR20190012545 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20090015227 on 30 March 2010.  Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 12 September 2019

.Counsel's brief with 17 Exhibits:



.Exhibit 1 – DA Form 47 (Record of Induction)

.Exhibit 2 – DD Form 214 (Armed Forces of the United States Report ofTransfer or Discharge), for the period ending 17 December 1971

.Exhibit 3 – Standard Form (SF) 93 (Report of Medical History)

.Exhibit 4 – Report of Psychiatric Evaluation, dated 22 October 1970

.Exhibit 5 – SF 88 (Report of Medical Examination)

.Exhibit 6 – DA Form 2627-1 (Record of Proceeding under Article 15, UniformCode of Military Justice (UCMJ)), administered on 16 January 1971

.Exhibit 7 – DA Form 2627-1, administered on 3 August 1971, andDA Form 2627-2 (Record of Appellate or Other Supplementary Actions underArticle 15, UCMJ), dated 13 August 1971

.Exhibit 8 – First Army (1AA) Form 515 (Transmittal of Court-Martial Charges)

.Exhibit 9 – SF 93

.Exhibit 10 – Psychologist's statement, dated 19 November 1971

.Exhibit 11 – Discharge approval documents

.Exhibit 12 – Army Discharge Review Board (ADRB) denial cover letter

.Exhibit 13 – ABCMR decision document in Docket Number AR20090015227

.Exhibit 14 – Department of Veterans Affairs (VA) decision document

.Exhibit 15 – self-authored statement and third-party letters that weresubmitted for consideration with the applicant's previous ABCMR application

.Exhibit 16 – Secretary of Defense Memorandum, dated 3 September 2014(Hagel Memorandum)


.Exhibit 17 – Undersecretary of Defense for Personnel and ReadinessMemorandum, dated 25 August 2017 (Kurta Memorandum)



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20090015227 on 30 March 2010.

2.The applicant defers comment to his counsel.

3.Counsel outlines the applicant's service, setting forth the following points:

a.At the time of the applicant's enlistment, he was suffering from depression overhis father's death.  This is documented in a medical examination that occurred in December 1969. 

b.The applicant was diagnosed as having passive-aggressive personality disorderand chronic anxiety in October and December 1970 but did not receive any psychological treatment for these conditions.   

c.The applicant's misconduct resulted from his unresolved depression from hisfather's death and the lack of care for this condition in a combat zone. 

d.The applicant was denied Department of Veterans Affairs (VA) benefits when hefiled for Agent Orange exposure and post-traumatic stress disorder (PTSD) because of his "dishonorable" discharge. 

e.The applicant ceased all use of illicit substances upon his return to the U.S. andhas remained an upstanding and contributing member of society since his discharge. 

4.The applicant was inducted into the Army of the United States on 5 May 1969 andenlisted in the Regular Army on 3 October 1969.

5.The applicant served in the Republic of Vietnam from on or about 21 April 1970through on or about 2 March 1971.

6.The applicant was afforded a mental status evaluation on 22 October 1970.  He wasfound to have a passive-aggressive personality that was considered chronic andmanifested by his inability to tolerate authority, drug usage, a strong dependency need,and passive obstinacy.  The condition was determined to have existed prior to service.

7.The applicant was afforded a medical examination on 7 December 1970 that foundhe was suffering from chronic anxiety with depression.

8.The applicant's record indicates he accepted nonjudicial punishment (NJP) on fouroccasions, under the provisions of Article 15 of the Uniform Code of Military Justice(UCMJ); however, the available record fully documents only the following two instances:

.he was administered NJP on 16 January 1971 for failing to obey a lawful generalorder by quitting his post without being properly relieved, on or about 14 January1971

.he was administered NJP on 3 August 1971, for being absent without leave(AWOL) from on or about 13 July 1971 through on or about 2 August 1971



9.Court-martial charges were initiated against the applicant on 4 October 1971, forviolations of the UCMJ.  Record documentation shows he was charged with beingAWOL from on or about 12 August 1971 through on or about 27 September 1971.

10.During a psychiatric evaluation, dated 26 October 1971, the applicant admitted tohaving a history of pre-service civilian arrests, trouble in school, and an inability to holda civilian job for any length of time.  He admitted to multiple drug usage while in Vietnamand was in the process of obtaining a divorce.  He was psychiatrically evaluated for adischarge while in Vietnam and had also seen a civilian psychiatrist.  On examination,he was described as being alert, oriented and cooperative.  He appeared somewhatdepressed and anxious concerning the possibilities of discharge.  He was psychiatricallycleared for any administrative action deemed appropriate by Command.  He was notmotivated to remain within the Service and it was felt that the Army would not benefitfrom his retention.  A diagnosis of a passive-aggressive personality was made and itwas recommended that he be discharged for unfitness.

11.The applicant's immediate commander notified the applicant of his recommendationto discharge him under the provisions of Army Regulation 635-212 (PersonnelSeparations – Unfitness and Unsuitability), by reason of unfitness.

12.The applicant consulted with counsel on 18 November 1971 and was advised of thebasis for the contemplated action to separate him under Army Regulation 635-212 forunfitness, and its effect; of the rights available to him; and of the effect of any actiontaken by him to waive his rights.  He further acknowledged his understanding that hecould expect to encounter substantial prejudice in civilian life if other than honorable becondition discharge, was issued to him.  He waived his right to have his case reviewedby board of officers, to have a personal appearance or to representation by counsel.  Heindicated that statements on his own behalf were submitted; however the indicatedstatements are not of record.

13.The applicant's immediate commander formally recommended the applicant'sseparation from service under the provisions of Army Regulation 635-212, by reason ofunfitness.

14.The separation authority approved the applicant's discharge on 17 December 1971,for unfitness, and directed that he receive a DD Form 258A (Undesirable DischargeCertificate).

15.The applicant was discharged on 17 December 1971, under the provisions of ArmyRegulation 635-212, by reason of unfitness.  The DD Form 214 he was issued confirmshis service was characterized as UOTHC.

16.The ADRB denied the applicant's request for an upgrade on 23 July 1975.

17.The ABCMR denied the applicant's request for an upgrade on 30 March 2010.

18.The provided VA records show the applicant has been granted service-connecteddisability for the residuals of Agent Orange exposure and PTSD, for medical treatmentpurposes only.

19.The statements in support of the applicant describe him as someone the authorsare proud to call a friend.  He is of upstanding character and a true patriot with acontagious enthusiasm for life; he is a good family man.  He has an unsurpassedcommitment to his community and country, which is evidenced by his service to others.They ask that the mistakes of a young man, serving during a dark period in ourcountry's history, not continue to be held against him and that he be given a secondchance.

20.The Board may consider the applicant's statements and letters of support inaccordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests.  The Board considered counsel's statement, the applicant’s record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements.  Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

XXX XXX XXX 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 to amend the decision of the ABCMR set forth in Docket Number AR20090015227 on 30 March 2010. 
X CHAIRPERSON


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.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
 
3.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness and unsuitability. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 
 
4.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct that served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues or continued for an extended period of time.   
 
5.  Although the DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a UOTHC characterization of service.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be 
carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 
 
6.  In view of the foregoing, the Secretary of Defense directed the Service DRBs and Service BCM/NRs, on 3 September 2014 ["Hagel Memorandum"], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC, who have been or were 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. 
 
7.  The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 ["Kurta Memorandum"].  The memorandum directed the Service DRBs and BCM/NRs 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, TBI, 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.  The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
 a.  Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 
 
 b.  An honorable discharge characterization does not require flawless military service.  Many Veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 
 
 c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD, TBI, or behaviors commonly associated with sexual assault or sexual harassment, and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 
 
8.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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//