IN THE CASE OF: BOARD DATE: 18 March 2021 DOCKET NUMBER: AR20200004205 APPLICANT REQUESTS: In effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. 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), dated 5 February 2020 * DD Form 214 (Report of Separation from Active Duty), for the period ending 18 April 1979 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, in effect he had a hard time after an incident in which he was stabbed in the stomach by another Soldier. He makes reference to STRs [presumably situation reports] but did not provide any such reports. Since this incident, he has had a lot of anger and trust issues. He would not be this way if this incident had not happened. He needs his discharge upgraded so he can seek treatment with the Department of Veterans Affairs (VA) for mental health issues. 3. The applicant enlisted in the Regular Army on 22 February 1977. 4. The applicant received non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 17 July 1977, for being derelict in the performance of his duties by failing to return to work, on or about 14 July 1977 * on 15 November 1977, for being disrespectful in language toward his superior noncommissioned officer (NCO), who was in the execution of his duties, on or about 12 October 1977 * on 21 June 1978, for two specifications of behaving with disrespect towards his superior officers and one specification of failing to obey a lawful order, on or about 17 June 1978 * on 3 October 1978, for one specification of failing to obey a lawful order, on or about 13 September 1978, and one specification of absenting himself from his required place of duty, on or about 14 September 1978 5. The applicant’s record contains medical documentation that shows he was stabbed in the left upper abdomen while involved in a fight on 31 October 1978. He underwent an exploratory laparotomy on 1 November 1978. 6. The applicant received additional non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following occasions: * on 4 November 1979, for being drunk and disorderly at the Hohenfels Training Area, on or about 31 October 1978 * on 16 January 1979, for being disrespectful in language towards his superior NCO who was in the execution of his duties, on or about 19 December 1978, and for being disrespectful in language towards his superior commissioned officer, on or about 30 December 1978 * on 26 February 1979, for four specifications of failing to go at the time prescribed to his appointed place of duty, on or about 9 February 1979; twice on 9 February 1979; and 12 February 1979; and for willfully disobeying a lawful order from his superior commissioned officer, on or about 9 February 1979 7. The applicant underwent separation physical and mental health examinations on or about 14 March 1979. The Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History) note his previous stab wound, he reported his health was good, he was taking no medications, and he was qualified for separation. The DA Form 3822-R (Report of Mental Status Evaluation) shows he had no significant mental illness; was mentally responsible; could distinguish right from wrong and was able to adhere to the right; and had the mental capacity to understand and participate in board proceedings. 8. The applicant's commander notified the applicant on 15 March 1979 that he was initiating actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-33b (1), due to misconduct – frequent incidents of a discreditable nature with civil or military authorities. 9. The applicant waived his right to consult with counsel on 15 March 1979 but acknowledged he was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14 and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a UOTHC discharge. He waived consideration of his case by, and personal appearance before, a board of officers; and elected not to make a statement in his own behalf. 10. The applicant's commander formally recommended his separation from service on 19 March 1979, under the provisions of Army Regulation 635-200, Chapter 14, due to misconduct - frequent incidents of a discreditable nature with civil or military authorities. The commander recommended a waiver of further rehabilitative requirements. His intermediate level commanders also recommended approval of his separation and a waiver of further rehabilitative requirements. 11. Consistent with the chain of command recommendations, the separation authority approved the recommended discharge on 27 March 1979, under the provision of Army Regulation 635-200, paragraph 14-33b(1), by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities. The separation authority noted that further counselling and rehabilitative efforts were waived and directed that the applicant receive a DD Form 794A (UOTHC Discharge Certificate). 12. The applicant was discharged on 18 April 1979, under the provisions of Army Regulation 635-200, paragraph 14-33b (1). The DD Form 214 he was issued confirms his service was characterized as UOTHC. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While liberal consideration was applied, the applicant’s case file and medical records are void of a psychiatric diagnosis. Accordingly, an upgrade is not recommended from a behavioral health standpoint. 2. Due to the period of service, active duty electronic medical records are void. The electronic case file contains a medical note which indicated the applicant was stabbed while fighting on 31 October 1978. The applicant had surgery and placed on a temporary profile while healing. A March 1979 Chapter Mental Status Exam (MSE) cleared the applicant for separation without a diagnosis. The applicant denied any psychiatric symptoms, diagnosis/es, or treatment during his separation physical. The physician also did not endorse psychiatric difficulties. 3. The applicant is not service connected and VA records are void of contact. 4. The applicant did not provide medical records. 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, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant statement, his record of service, documents provided by the applicant and the review and conclusions of the advising official. The Board considered the frequency and nature of his misconduct and the reason for his separation. The Board concurred with the medical advisory opinion finding insufficient evidence of in- service mitigating factors to overcome the misconduct from a behavioral health standpoint. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Base 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 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 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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. c. 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. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), 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 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. 4. 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 them 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, traumatic brain injury (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 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. 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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// ABCMR Record of Proceedings (cont) AR20200004205 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200004205 6 ABCMR Record of Proceedings (cont) AR20200004205 5