IN THE CASE OF: BOARD DATE: 18 November 2021 DOCKET NUMBER: AR20190013152 APPLICANT REQUESTS: * his general under than honorable conditions discharge be upgraded to an honorable discharge * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his correct service time APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), 1 May 2019 * Self-authored letter, 1 May 2019 * DD Form 214 FACTS: 1. The applicant did not file within the three 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: a. He received a letter from the Department of Veterans Affairs stating he may be eligible for services due to a new law that has been passed. He has a copy of his DD Form 214 which does not match his original DD Form 214. His DD Form 214 has incorrect dates and service time. b. He received a discharge under other than honorable conditions in accordance with Army Regulation (AR) 635-200 (Personnel Separations), paragraph 13-a. The discharge was processed by his unit commander; the reason for the discharge was not meeting performance standards. Several Soldiers were released through this process during the same period. He served with pride and honor. He was young and unaware of the consequences. He was not drafted; he joined to serve his country. c. In the 1970s, he had issues with his actions, mental behavior, and normal daily duties. During his military service his mental health deteriorated, and he encountered mental pressures. He self-medicated and used alcohol to heal himself. He missed formations, was late for duty, and had a negative attitude. His First Sergeant (1SG) and Battalion Sergeant Major liked him. He was an outstanding Soldier until he started having mental issues. He was admitted to a mental ward. He does not have records for his mental hospitalization at Fort Riley, KS; he was there for almost six months. He was released from the hospital and returned to his unit. Some of his old issues resurfaced and he started to fall back into old patterns. d. During this period the Army was letting Soldiers out through various programs. A group of them was sent to a briefing room, where they were told they could be discharged if they wanted to get out. They had to sign a release form at the end of the briefing. They were told it was not a dishonorable discharge and that they were being discharged by their company commander for not meeting their performance standards. The majority of the group lined up and processed out. e. This process was another way for the Army to downsize after the Vietnam War. They were not fairly briefed on the impact the discharge would have on their benefits. They were treated unjustly due to their mental issues. 3. Review of his records shows: a. The applicant enlisted in the delayed entry program on 28 April 1975. He enlisted in the Regular Army on 20 May 1975. He completed training and was awarded military occupational specialty 11E (Armor Crewman). b. On 7 November 1975, he was assigned to B Troop, 1st Squadron, 4th Cavalry at Fort Riley, KS. c. On 16 April 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent from his place of duty on or about 12 April 1976 until on or about 13 April 1976. His punishment consisted of forfeiture of $25.00 pay, per month for one month. d. A summary record of counseling from August 1976 to January 1977 shows, in part, unsatisfactory uniform, personal appearance and attitude, failing to bring items in for training, numerous instances of being absent and late for duty, calling noncommissioned officers by their first name, talking in formation, and disrespect. e. A Standard Form (SF) 600 (Health Record), 9 November 1976, shows, in part, drug abuse. The applicant admitted to the use of lysergic acid diethylamide (LSD), cocaine and marijuana, and he requested treatment. f. A Standard Form 509 (Clinical Record) shows, in part, the applicant was admitted on 9 November 1976 to an Army hospital for amphetamine detox. He was discharged on 11 November 1976. g. A DA Form 4126 (Bar to Enlistment/Reenlistment Certificate), 22 November 1976, shows on 16 April 1976 the applicant was absent from his appointed place of duty and has continuously demonstrated an inability to show up for work on time. h. On 15 November 1976, the applicant was demoted from specialist four (SP4)/E-4 to private first class (PFC)/E-3. i. On 2 December 1976 his commanding officer endorsed the approval of the applicant's bar to enlistment/reenlistment (22 November 1976). He stated the applicant was to be apprised that he was barred from reenlistment and would be separated upon completion of his current term of service. The applicant was to be further advised that, if warranted, he would be considered for separation prior to his expired term of service under appropriate regulations, such as AR 635-200. j. On 28 December 1976, the applicant was demoted to private (PV2)/E-2. k. A Standard Form 93 (Report of Medical History), 30 December 1976, shows in: * item 11 (have you ever had or have you now) – applicant checked “yes” for frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort * item 19 (have you been a patient in any type of hospital) – applicant checked “yes”, at Fort Irwin, KS, for drug and alcohol abuse l. His duty status changed from present for duty to AWOL from 6 January 1977 to 12 January 1977. m. A DA Form 3322-R (Report of Mental Status Evaluation), 20 January 1977, shows, the applicant was interviewed and administered psychological testing. It also states the applicant had a very hostile attitude toward the military and had no desire or motivation to remain in the military. The applicant would probably continue to act out impulsively. His commander was advised to consider administrative separation for this individual. n. Numerous witness statements: (1) Sergeant (SGT) F____ stated that on or about 24 November 1976, the [applicant] failed to report to Platoon Sergeant Hand. [Applicant] stated he could not find Platoon Sergeant H____, SGT F____ showed the [applicant] where Platoon Sergeant H____ was located. The [applicant] replied that he had to go to the troop medical clinic (TMC); [applicant] departed without reporting. (2) Chief Warrant Officer two (CW2) C____ stated on 15 December 1976, the [applicant] reported to the aid station. He complained of an injured shoulder. CW2 C____ did an x-ray to rule out bone damage. The [applicant] left the aid station prior to 0800 hours. On 16 December 1976, the [applicant] returned with his x-rays. When questioned as to why he did not finish his consult the previous day, the [applicant] stated he was sent to repeat x-rays; he did not have additional views in his record. His First Sergeant has a second sick slip that stated the [applicant] left the TMC at 1630 hours. The TMC closed at 1600 hours. (3) PFC S____ stated, on 15 December 1976 the [applicant] was seen at TMC 6 and sent to TMC 7 for a chest x-ray. The [applicant] left at 0930 hours, and returned at 1030 hours. The [applicant] informed him that an x-ray technician told him his films could not be taken until the afternoon. He was signed out at 1030 hours. The sick slip now reads 1630 hours. The TMC 6 was locked at 1530 hours. (4) Staff Sergeant (SSG) S____ stated, on 27 December 1976, the [applicant] did not show up for his scheduled urinalysis. He saw the [applicant] in his car in the troop parking lot. He tried to flag the [applicant] down but the [applicant] refused to stop. (5) Sergeant First Class (SFC) F____ stated, on 13 January 1977, he found the [applicant] in the barracks area. The [applicant] was AWOL a week prior. He asked the [applicant] if he turned himself in and if he was restricted. The [applicant] stated, he did turn himself in, and he saw the people he was supposed to see. The [applicant] stated they were going to put him out and he was glad. He later heard the [applicant] state that he went to Denver, CO, for a couple of days to see his mother who was dying of cancer. The [applicant] also stated he spent his AWOL period in the area around Fort Riley, KS. 4. The applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 13-2a, for unsatisfactory performance. His commander's rationale for the proposed action was due to the applicant being involved in repeated incidents of a discreditable nature. The applicant was a repeated AWOL offender. He was continuously absent from his place of duty, and he had been reported for speeding and failing to register his privately owned vehicle. His appearance was continuously poor. He did not respond to corrections or counseling, and his conduct and attitude were completely unsatisfactory. The applicant had been counseled, transferred to another platoon, and reassigned within the troop so that he could have a different chain of command. The applicant had not responded to counseling or rehabilitative attempts. 5. On 11 February 1977, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for misconduct. He consulted with counsel who advised him of the basis for the contemplated action to separate him for unsatisfactory performance under AR 635-200, Chapter 13, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. a. He acknowledged: * he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that I may expect to encounter substantial prejudice in civilian life * he understood that he may until the date the discharge authority directs or approves his discharge, withdraw this waiver and request that a board of officers hear his case b. He elected to make the following statement: (1) He asked to be put out the military. His reply was that he was a good Soldier who was promoted to SP4 and there was talk of him being promoted to SGT. The pressure was so great he overdosed. He was in the hospital for three days. When he returned the 1SG began to toy with him again. (2) The 1SG asked him what type of birds don’t fly, to which he replied that he did not know. The 1SG said jail birds, so he went AWOL. The people with rank started putting pressure on him. His 1SG struck him on his shoulder; he had a profile on that shoulder. His commander pulled him out of his drug and alcohol class because he did not want him to get a chapter 16 (separation due to bar to reenlistment). He had extra duty and could not attend the drug and alcohol class. 6. Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under chapter 13 of AR 635-200 for misconduct. The commander opined that the applicant has been an irritant in the unit. When counseled about his shortcomings, the applicant expressed a desire to improve. However, he would turn around and commit the same offense. When his duties were explained in detail he would go AWOL. The applicant had created morale problems and spread false rumors in the unit. The applicant alleged he had been struck by the 1SG, but upon investigation this was found to be untrue. The applicant received an Article 15 for forging a sick slip. He was placed in the drug program. The counselor indicated that the applicant was a disruptive force. In view of his steady decline in duty performance and conduct, the applicant was informed that he could continue counseling but a recommendation for discharge would be made based on his unsatisfactory conduct. 7. The separation authority approved his discharge under the provision of paragraph 13-5 of AR 635-200, and directed the issuance of an under other than honorable conditions discharge. The applicant was accordingly discharged on 10 March 1977. 8. His DD Form 214 shows he was discharged in accordance with paragraph 13-5 of AR 635-200 for misconduct (frequent involvement of a discreditable nature with authorities) with an under other than honorable conditions characterization of service. He completed 1 year, 9 months, and 10 days of active service. His DD Form 214 also shows in: * item 15 (Date Entered Active Duty this Period) – 20 May 1975 * item 18d (Prior Inactive Service) – 22 days * item 18e (Total Service for Pay) – 1 year, 10 months, and 2 days * item 27 (Remarks) – 11 days lost under Title 10, United States Code, Section 972, from 11 November 1976 to 14 November 1976; 6 January 1977 to 12 January 1977 9. AR 635-200, chapter 13, as then in effect, provided for separation for unfitness or unsuitability. Paragraph 13-5 listed frequent incidents of a discreditable nature with civil or military authorities as a basis for discharge for unfitness. An individual separated by reason of unfitness was to be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in the case. 10. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. Block 18, Net Active Service This Period, amount of service this period, computed by subtracting item 15 (Date entered Active Duty this Period) from item 9d (Effective Date), less lost time. b. Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between “Date Entered Active Duty This Period” (item 15) and "Separation Date This Period” (block 9d) is creditable service. 11. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes the application and supporting documentation and the applicant's military service records. The VA electronic medical record, the Joint Legacy Viewer (JLV), was also reviewed. a. The available military medical records do not have a BH diagnosis other than drug abuse. b. JLV does not contain any BH diagnoses. c. The applicant did not submit any medical records or documents to support his claim of having mental health issues other than drug abuse. d. After reviewing the available information, it is the opinion of the ARBA BH Advisor that the applicant does not have any mitigating BH diagnosis. The applicant met retention standards at the time of discharge. The applicant does not have any mitigating BH factors for unsatisfactory performance and misconduct. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's BH claim and the review and conclusions of the ARBA BH Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a BH condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. 2. The Board also found that the applicant's DD Form 214 accurately documents the creditable active duty service he performed. The Board noted the applicant had 11 days of lost time, which explains why his creditable active duty service is less than the calendar period during which he served. The Board determined the calculation of his creditable active duty service is not in error. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. 3. AR 635-200, chapter 13, as then in effect, provided for separation for unfitness or unsuitability. Paragraph 13-5 listed frequent incidents of a discreditable nature with civil or military authorities as a basis for discharge for unfitness. An individual separated by reason of unfitness was to be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in the case. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been 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. 5. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 6. 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. 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 based on 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. 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. 7. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. a. Block 18, Net Active Service This Period, amount of service this period, computed by subtracting item 15 (Date entered Active Duty this Period) from item 9d (Effective Date), less lost time. b. Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between “Date Entered Active Duty This Period” (item 15) and” Separation Date This Period” (block 9d) is creditable service. c. Verify that time lost as indicated by the Defense Finance and Accounting Service has been subtracted from “Net Active Service This Period” (block 18) if lost time was not “made good.” If the ETS was adjusted as a result of lost time the Soldier served until ETS, the lost time was “made good.” Lost time under 10 USC 972 is not creditable service for pay, retirement, or veteran’s benefits. However, the Army preserves a record (even after time is made up) to explain which service between “Date Entered Active Duty This Period” (block 15) and” Separation Date This Period” (block 9d) is creditable service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190013152 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013152 9 ABCMR Record of Proceedings (cont) AR20190013152 8