IN THE CASE OF: BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210005415 APPLICANT REQUESTS: Reconsideration of his previous request that his under other than honorable conditions (UOTHC) discharge be upgraded. 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 August 2020, with an eight-page self-authored statement * a Kingman Veterans Treatment Court diploma * Mohave Mental Health Clinic treatment records (eight pages) * two third-party letters of support FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20050006804 on 20 December 2005. 2. The applicant's contends that he suffers from PTSD and that his contention is a new argument warranting reconsideration. He states: a. The record is unjust due to the fact that he was suffering from severe post- traumatic stress disorder (PTSD) at the time of his misconduct that lead to his discharge. The law has changed since the date of his discharge. He was not diagnosed with PTSD until mid-2019 and now believes that he may qualify for a discharge upgrade. b. He experienced PTSD due to, among other things, extreme childhood physical abuse. His PTSD has in the past, prevented him from obtaining and/or holding gainful employment. As a result, this petition concerns PTSD-related conditions during service, whereas the time limits will be liberally waived for applications under the 2016 Carson and Hagel Memoranda. c. Since the time of his discharge, both the medical community and the Department of Defense (DoD) have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. As PTSD is associated with avoidant behaviors, there is a nexus between his PTSD and his offense of AWOL. Unfortunately, military service worsened his PTSD to the point he went AWOL. He was finally diagnosed with PTSD stemming from childhood abuse in September of 2018. His PTSD existed at the time of his military service and is a mitigating factor in his misconduct. d. Prior to his enlistment had been a continuous struggle. As a child, he was abused by both of his parents and his mother's boyfriends, routinely told he was stupid, worthless, and trouble. He left home at age 15 due to the abuse he received. e. When he joined the Army he was hoping to be a truck driver but instead, he was given the job of driving tanks, which was fine with him. At the time, he had an unstable home life but had no trouble with the law. He was a young person in search of stability and purpose and he found that with the Army. He wanted to be in a supportive environment, free from physical/emotional abuse that had plagued his entire young life. f. After his assignment to Fort Carson, his girlfriend seemed less interested in maintaining a relationship with him. He began to doubt if she would come out to be with him. The thought of her abandoning him overwhelmed him with grief and despair. On or about 9 May 1977, he went on a seven-day leave to go home and straighten things out with his girlfriend. While he was there, he impulsively made the decision to not go back. He was despondent, desperate, and confused. He retreated into his own world and regrettably, left the best job he had ever had. g. The last forty-four years have not been easy on him, he learned to drive a truck to support himself but has suffered continuous job and relationship set-backs. He has made some good choices and has worked as a paramedic for 10 years but he has had problems with relationships and anger management, and the quality of his life has often been poor. He has been divorced three times and never knew the depth of his emotional and psychological trauma until he was arrested and offered treatment through the Veterans Treatment Court. h. He wants to change his discharge from UOTHC, on the basis that this discharge does not properly reflect his entire period of honorable service. He was a great member of the military and served the country proudly. But during that time his pre-existing PTSD was triggered by his service, rendering him incapable of continuing his military duty. The upgrade would rightfully restore the benefits and Veteran status that he worked so hard for. i. The applicant requests the Board reconsider his upgrade based on the guidance of the Secretary of Defense Hagel 3 September 2014 memorandum, the February 2016 Carlson memorandum, the 25 August 2017 Under Secretary of Defense A. M. Kurta memorandum, and the Under Secretary of Defense for Personnel and Readiness 25 July 2018 [Wilkie Memorandum]. 3. The applicant enlisted in the Regular Army on 28 April 1976, with parental consent at age 17. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 14 March 1977, for failure to go at the prescribed time to his appointed place of duty, on or about 3 March 1977 and on or about 7 March 1977 * on 19 April 1977, for acting with disrespectful behavior toward a commissioned officer; disobeying a lawful order from a commissioned officer; disobeying a lawful order from a noncommissioned officer; and using disrespectful language toward a noncommissioned officer, on or about 30 March 1977 4. The applicant was reported absent without leave (AWOL) from on or about 9 May 1977 through on or about 5 July 1977. 5. The applicant’s record is void of the facts and circumstances that led to his discharge. However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 2 August 1977, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. His DD Form 214 further shows he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 1 year, 1 month, and 7 days of active service and he had 78 days of lost time. 6. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 7. The applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade. After careful consideration on or about 19 May 1980, the ADRB denied that applicant's petition. 8. The ABCMR denied the applicant's request for an upgrade on 20 December 2005. 9. The applicant provides letters of support from his sister and brother, who indicate that the applicant, though faced with multiple health problems due to their harmful childhoods, keeps working forward to better his life. His brother recounts his life growing up with the applicant and his problems with relationships that, in his opinion, were most likely a result of a severe beating he received from his father and subsequent beatings from his mother. 10. The Board should consider the applicant's statement for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. 11. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD he developed while on active duty. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and civilian medical documentation were also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records were provided for review. b. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 28 Apr 1976. He received an award for Marksman (Rifle). His job assignment was Armor Crewman. He received an Article 15 for failure to go to the Motor Pool (07 Mar 1977) and missing the pre-guard inspection (03 Mar 1977) while assigned to Company B, 2nd Battalion, 34th Armor, Fort Carson, CO. He received a second Article 15 for showing disrespect to his 1LT, disobeying an order to stay in a designated Company building, disobeying an order to come to attention and being disrespectful in language to his 1st Sergeant (30 Mar 1977). He was charged as well with being absent without leave (AWOL) from 09 May 1977 - 05 Jul 1977. He received an Under Other Than Honorable Conditions discharge on 02 Aug 1977. c. In the supporting documentation, a Mohave Mental Health Clinic note, Kingman, AZ, dated 21 Sep 2018 indicated “presented with symptoms of PTSD and alcohol abuse. Anthony has threatened to take his wife out in the desert and murder her. Anthony had impulsive behaviors.” He was diagnosed with PTSD. d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was no data available for medical or behavioral health notes, as well as for the problem list. e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, PTSD. As there is an association between PTSD and avoidant behavior, there is a nexus between applicant’s symptoms and his absences from specific duty obligations and from his unit altogether. In addition, as there is an association between PTSD and resistant, hostile attitudes toward authority figures, there is a nexus between his PTSD symptoms and the disrespectful, menacing behavior and negative attitude he demonstrated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability which occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers whose preexistent PTSD worsens in a noncombat military environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. 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. Based on the available information and in accordance with the Liberal Consideration guidance, Board members found the applicant has a mitigating BH condition, PTSD, with a nexus between his PTSD and avoidant behavior, resistance and hostile attitudes toward authority figures, and voted to grant partial relief in the form of a general discharge, with no change to the reason for his separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20050006804 on 20 December 2005. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 2 August 1977 to show the character of service as general, under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's character of service to fully honorable. 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 for correction 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 the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provides: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment includes a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 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 February 2016 Carson Memorandum allows Veterans with certain mental health conditions to apply to BCM/NRs but not DRBs, no matter how long ago they were discharged. It also allows Veterans whose applications were previously denied by the Board to apply again and have their application benefit from the Hagel Memorandum (as well as other new memos). When Veterans reapply, the Board is required to make an entirely new decision and not consider any past rejection when reviewing the new application. 5. 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. 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. b. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service 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. 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. 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.) AR20210005415 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont.) AR20210005415 7 ABCMR Record of Proceedings (cont.) AR20210005415 6