IN THE CASE OF: BOARD DATE: 1 October 2021 DOCKET NUMBER: AR20200008212 APPLICANT REQUESTS: in effect, upgrade of his under other than honorable conditions discharge to an honorable physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Kaiser Permanente authorization for use or disclosure of patient health information * medical records (38 pages) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 when he got out the service he was told he was getting an undesirable discharge under honorable conditions. Plus, when he got [social security] he was told he had a 12-d discharge, which she had never heard of that. He started having headaches in school and took a hand full of pills to kill himself. The headaches started back when he was told some troops were killed. He indicates on his DD Form 149 the condition posttraumatic stress disorder (PTSD) is related to his request. 3. The applicant enlisted in the Regular Army on 24 October 1972 for a period of 3 years. He was awarded the military occupational specialty (MOS) 71T2P (Equipment Maintenance) on 23 March 1973. 4. The applicant was transferred to Fort Benning, GA effective 24 March 1973 for airborne training. He was transferred to his permanent duty station at Fort Bragg, NC effective 24 April 1973. 5. A DA Form 3835 (Notice of Unauthorized Absence from the US Army), dated 5 July 1973, shows he was absent without leave (AWOL) on 4 July 1973. A DA Form 3836 (Notice of Return of US Army Member from Unauthorized Absence), dated 19 September 1973, shows the applicant returned to military control on 18 September 1973. 6. A DA Form 3835, dated 21 December 1973, shows the applicant was AWOL on 1 October 1973. A DA Form 3836 dated 6 August 1974 shows he returned to military control on 6 August 1974. 7. On 22 August 1974 the applicant’s unit commander preferred court-martial charges against him for his periods of AWOL from 4 June 1973 to 18 September 1973, and 1 October 1973 to 6 August 1974. 8. A Standard Form (SF) 88 shows the applicant completed a medical examination on 14 August 1974. No defects were noted. 9. On 22 August 1974, the applicant submitted a request for discharge for the good of the service. the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did submit a statement in his own behalf that states, in part, that his main reason for going AWOL was because the Army told him he would be at McPherson and he was not. He is an only son and wanted to be close to home. 10. On 28 August 1974, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200 with an undesirable discharge, and reduction to the lowest enlisted grade. 11. On 30 September 1974, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under other than honorable conditions. He completed 9 months and 17 days of net active service. The reason and authority shows chapter 10, Army Regulation 635-200. The separation code is show as KFS (In Lieu of Trial by Court-Martial). He had 415 days time lost. 12. The applicant applied to the Army Discharge Review Board and was notified on 16 September 1975 that it was determined that his discharge was proper and equitable. 13. The applicant provided 38 pages of medical records demonstrating he has been treated for the behavioral health conditions of depression, stress, anxiety, and PTSD. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. 15. Title 38, United States Code (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. 16. In reaching its determination, the Board can consider the applicant's petition, his statements, and the medical advisory, in light of the published Department of Defense guidance on equity, injustice, or clemency. 17. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting in effect, an upgrade of his Under Other Than Honorable Conditions discharge to an Honorable physical disability discharge. He indicates on his DD Form 149 the condition Post-Traumatic Stress Disorder (PTSD) is related to his request. The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Regular Army on 24 October 1972 and was discharged on 30 September 1974 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His service was characterized as Under Other Than Honorable Conditions. The court-martial charges were AWOL from 4 June 1973 to 18 September 1973 and 1 October 1973 to 6 August 1974. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. Applicant submitted medical records from Kaiser Permanente dated 6 September 2018 to 29 October 2018 that includes an Adult Behavioral Health Intake and progress notes from two individual therapy sessions. The intake evaluation was conducted 6 September 2018 and diagnoses applicant with Post- Traumatic Stress Disorder (PTSD), Adjustment Disorder with Anxiety, and Major Depressive Disorder. The evaluation indicates that applicant’s PTSD was diagnosed based on childhood abuse and traumas in adulthood that are not military-related. There is no mention of any trauma related to applicant’s military service. d. Applicant is not service connected and record indicates that he is ineligible for VA services. He made a call to the VA National Suicide Prevention Hotline in June 2021. He reported suicidal ideation and was provided community resources due to his ineligibility for services. e. After review of all available documentation, there is insufficient evidence to support that applicant had a boardable behavioral health condition at the time of military service. Therefore, his request for referral to the military disability evaluation system is not supported. f. Regarding his request for a discharge upgrade, there is evidence that applicant was diagnosed with PTSD in 2018, which was 44 years post-discharge. However, applicant’s diagnosis was based on childhood abuse and traumas unrelated to his military service. There is also no indication that his PTSD was present at the time of service or related to his military service. Accordingly, his request for a discharge upgrade is not supported. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the advising official. Based upon a preponderance of the evidence, the Board concurred with the medical advisory opinion finding insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted 2. The Board carefully considered published DoD 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 medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 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 :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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. 3. 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 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. 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, 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, on those conditions or experiences. 5. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. 6. Title 38, USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title, 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 9. Army Regulation 635-40 establishes the Army Disability Evaluation System 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008212 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1