IN THE CASE OF:  BOARD DATE:  6 August 2021 DOCKET NUMBER:  AR20210006762 


APPLICANT REQUESTS:  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 Provisionsof Title 10, U.S. Code, Section 1552), dated 24 September 2020, with self-authored statement, dated 15 September 2020

•Physician Letter, dated 9 August 2020

•Character Reference Letters, dated between 29 April and 6 May 2020 (five)



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was suffering under the challenges that generally manifest ina survivor of post-traumatic stress disorder (PTSD).  This affected his behavior and ledto his special court-martial.  The events he experienced as a child and young adult ledto the irritation behavior he displayed toward his fellow Soldiers and superiors.  With theassistance of many individuals throughout his life, he has come to realize that but for hisbehavior, he might have continued in the military, something that was his earnest desirewhen he first joined.

3.The applicant enlisted in the Regular Army on 8 July 1976.

4.The applicant accepted non-judicial punishment (NJP) on 4 October 1977, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for breakingrestriction on or about 7 September 1977 and 25 September 1977; for failing to go atthe time prescribed to his appointed place of duty, on or about 7 September 1977; forfailing to obey a lawful order; on or about 8 September 1977; and for being disrespectfulin language to his superior noncommissioned officer, on or about 22 September 1977.
5.Before a special court-martial on or about 31 October 1977, at Camp Stanley,Republic of Korea, the applicant was found guilty of two specifications of assault againstanother Soldier, on or about 23 October 1977 and on or about 1 October 1977; onespecification of being absent without leave (AWOL), from on or about 11 October 1977to on or about 18 October 1977; and one specification of breaking restriction on orabout 2 October 1977.  His sentence included confinement at hard labor for 106 daysand forfeiture of pay for four months.

6.The applicant accepted NJP on 27 January 1978, under the provisions of Article 15of the UCMJ, for wrongfully possessing 3.12 grams of marijuana on or about 14 January1978.

7.A DA Form 3322-R (Report of Mental Status Evaluation), dated 30 January 1978,shows the applicant underwent a mental status evaluation and was found to be mentallycapable to participate in board proceedings.

8.The applicant’s record is void of a separation packet containing the specific facts andcircumstances surrounding his discharge processing.  However, his DD Form 214(Report of Separation from Active Duty) shows he was discharged on 7 February 1978,under the provisions of Army Regulation 635-200 (Personnel Separations – EnlistedPersonnel), paragraph 13-5a (1), by reason of unfitness.  He was credited with oneyear, three months, and ten days of net active service, and his service wascharacterized as UOTHC.

9.The applicant provides:

a.A letter from a physician, dated 9 August 2020, which opined that the applicant’srecords did not support any major mental illness that would have altered his behaviors significantly, other than the stress that he endured.  It is uncertain that the oppositional behaviors were triggered by trauma from being present during his brother’s rape, although it is possible. 

b.Character reference letters, dated between 29 April and 6 May 2020, attesting tothe applicant’s dependability, strong religious beliefs, trustworthiness, and integrity. 

10.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.  Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on mental health conditions, including PTSD.  TheVeteran’s testimony alone, oral or written, may establish the existence of a condition orexperience, that the condition or experience existed during or was aggravated bymilitary service, or that the condition or experience may excuse or mitigate thedischarge.
11.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting discharge upgradecontending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD he developed during childhood and adolescence, and worsened while on active duty. 
b.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) was 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 or civilian medical documentation was provided for review.  
c.Review of the applicant’s military documentation indicates that he enlisted in theRegular Army on 08 Jul 1976. During his military career, he was assigned overseas to Korea from Jan 1977 - 13 Oct 1977. The DD-214 does not indicate that he received any awards during his time in service. He received an Article 15 for “breaking restriction” (07, 25 Sep 1977), missing extra duty (07 Sep 1977), “disrespectful language toward NCO (22 Sep1977) and disobeying an order (08 Sep 1977). A Special Court-Martial Order, dated 28 Nov 1977, charged him with striking a SP/4 “in the face with fist” (23 Oct 1977) and striking a PFC “in head and shoulders with his fist” (10 Oct 1977). He was also charged with going AWOL from 11-18 Oct 1978 and breaking restriction (02, 24 Oct 1997). He received another Article 15 for possession of approximately 3 grams of marijuana (14 Jan 1978). A Report of Mental Status Evaluation, dated 30 Jan 1975, identified normal behavior, level mood and normal thought content, as well as “meeting retention standards.” He received an Under Other Than Honorable Conditions discharge on 07 Feb 1978 with Authority and Reason, Para 13-5a (1), AR 635-200, SPD JKA. d.A statement with the ABCMR application indicated, “I am writing today to seekconsideration for an upgrade in my character of service upon discharge from the US Army. I believe this correction should be made because at the time I was suffering under the challenges that generally manifest itself in a survivor of posttraumatic stress. This affected my behavior and led to a special court-martial. I believe that the traumatic events I experienced as a child and young adult led to the irritation I displayed toward my fellow soldiers and superiors… At first I appreciated the discipline that was being instilled but I found that some of the tactics being used would also serve as an irritant to my mood. I started fighting and became rebellious because I was being accused of things that I had nothing to do with and at times I felt abandoned by the Army. I didn't seek professional help because of the stigma attached to mental health at the time period.” The supporting documents included several letter from friends and professional persons who spoke well of his character and integrity following his time in service.  
e.The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate anyservice connected disability(s). There was an absence of any relevant behavioral health related notes in JLV, despite some social work entries. The Problem List indicated “Homelessness” (22 Nov 2019). f.Based on the available information and in accordance with the LiberalConsideration guidance, it is the opinion of the Agency psychologist that the applicant has a partially mitigating Behavioral Health condition, trauma related symptoms. This applies in particular to his periods of being AWOL, disobeying orders, breaking restriction, disrespectful language to an NCO and possession of marijuana. As there is an association between trauma related symptoms and avoidant behavior, there is a nexus between his symptoms and his absences/neglectful performance from his unit and required duty functions. In addition, as there is an association between trauma related symptoms and use of illicit drugs to self-medicate symptoms, there is a nexus between his symptoms and the pattern of substance abusing behavior applicant demonstrated. Finally, as there is an association between trauma related symptoms and resistant, negative attitudes toward authority figures, there is a nexus between his symptoms and the disrespectful behavior he demonstrated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who have a worsening of preexisting trauma related symptoms in a noncombat environment. However, the purposeful assaultive behavior toward other soldiers is not part of the natural history or sequelae of trauma related symptoms and, as such, is not mitigated under Liberal Consideration. Nonetheless, a discharge upgrade is encouraged. 
BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review and 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 lack of medical records and conclusions of the advising official.  The Board agreed there is no evidence of a PTSD diagnosis, nor a PTSD causing event during his military career.  Notwithstanding the advising official’s recommendation, the Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct.  The applicant provided letters of support, but no evidence of post-service achievements 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. 

After reviewing the application and all supporting documents, the Board found that relief was not warranted. 

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. 


Microsoft Office Signature Line...


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  Paragraph 13-5(a) provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 
 
3.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 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 Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum].  The memorandum directed the BCM/NRs to waive the statute of limitations.  Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit.  Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 
 
5.  The Under Secretary of Defense (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. 
 
6.  The Under Secretary of Defense (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.   
 
 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. 
 
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