IN THE CASE OF: . BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210008070 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Letter from Veterans Service Office FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 never wanted out of the Army. He loved the Army but he had stress from his military occupational specialty (MOS). He told them he had a problem with being in the MOS and the responsibility was too much. They wanted to put in him in the stockade so he left. He tried a second time to explain the pressure he was under, but he left again. After that they added absent without leave (AWOL) to his record when he wasn't AWOL and they discharged him with an undesirable discharge. He did desire to stay in the military. The applicant also indicates on his application that he suffered from post-traumatic stress disorder (PTSD) and other mental health issues. 3. The applicant provides a letter from Veterans Service office requesting the Board review the applicant for character of discharge upgrade on behalf of the applicant. 4. On 7 May 2021, the Case Management Division of the Army Review Board Agency sent the applicant a request for medical documentation in support of his PTSD and other mental health issues. The applicant did not respond. 5. On 10 February 1971, the applicant, at the age of 18-year-old, enlisted in the Army for a period of 3 years. His DA Form 20 (Enlisted Qualification Record) shows he entered basic combat training on 22 February 1971 and advanced individual training for the MOS of 67A10 on 28 April 1971. On 21 May 1971, the applicant was eliminated from the 67A10 course effective 19 May 1971 for written exam failure. It was recommended he not continue in aviation maintenance training. His record did not indicate what MOS he was awarded. 6. On 10 June 1971, the applicant's commander sent a letter to the applicant's father informing him the applicant went AWOL on 1 June 1971. If the father had any knowledge of the applicant's whereabouts, he was asked to urge the applicant to return to his normal place of duty. 7. A Extract Copy of Morning Morning Report shows the applicant departing AWOL on 1 June 1971 and was dropped from rolls (DFR) on 30 June 1971. An Extract Copy of Morning Report shows the applicant returned to duty on 6 Jul 1971. He had been apprehended by civil authorities. On 26 July 1971, had again departed AWOL and returned from AWOL on 28 July 1971. 8. A Legal Section Worksheet shows a violation of the Uniform Code of Military Justice (UCMJ) Article 86 in that the applicant was AWOL from on or about 1 June 1971 to on or about 6 July 1971. 9. On 13 July 1971, temporary duty orders were published for individuals to escort prisoners, one of whom was the applicant, to Fort George G. Meade, Maryland. 10. On 14 July 1971, a Military Police Report was completed and shows the applicant was AWOL on 1 June 1971 returning on 6 July 1971. He was apprehended by civil authorities. 11. On 14 July 1971, the applicant completed a waiver of rights to counsel for AWOL and stated he did not want to consult with a lawyer and would answer questions and make a statement. He then completed an Interview Sheet, which states the was AWOL from 1 June 1971 to 14 July 1971. His reason for going AWOL was he was home sick but he wanted to stay in the Army. It was recommended he receive a special court- martial. The applicant was an unstable person and the commander felt he should not be in the service. 12. On 21 July 1971, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10, and he elected not to submit a statement on his own behalf. 13. On 11 August 1971, a charge under the UCMJ Article 86 was written on a piece of paper showing the applicant failed to be at his appointed place of duty on or about 26 July 1971. 14. An Extract Copy of Morning Report shows the applicant went AWOL on 26 July 1971 and was DFR on the same day. 15. An unsigned, undated Commander's Inquiry shows an inquiry had been made as to the probable cause and motive concerning the applicant's AWOL. The commander's inquiry did not reveal the cause or motive which prompted the applicant to absent himself without proper authority. There was no record of evidence to indicate that the applicant was absent because of foul play nor was he able to ascertain whether the applicant intended to return to military control. The applicant had escaped from confinement and was DFR. 16. On 10 August 1971, temporary duty orders were published for individuals to transport prisoners, one of whom was the applicant, to Fort George G. Meade, Maryland. 17. On 11 August 1971, the applicant completed a Waiver of Rights to Counsel and sated he did not wish to consult with a lawyer and he wanted to answer question and a make a statement. 18. On 11 August 1971, a Military Police Report was completed, which shows the applicant was AWOL from 26 July 1971 and was apprehended later that day by civil authorities. He was returned to military control on 29 July 1971. 19. On 20 August 1971, a Report of Psychiatric Evaluation was completed on the applicant and shows he had no significant psychiatric abnormality. 20. On 18 August 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 1 June 1971 until on or about 6 July 1971 and for failing to be at his appointed place of duty on 26 July 1971. The charges were forwarded to the convening authority, on 18 August 1971. 21. A Deserter Wanted by the Armed Forces form shows the applicant went AWOL on 27 September 1971 and was DFR on 14 October 1971. 22. On 8 November 1971, a Report for Suspension of Favorable Personnel Actions was completed on the applicant for being AWOL. 23. On 1 December 1971, a Military Police Report was completed and shows the applicant went AWOL on 27 September 1971 and was DFR on 14 October 1971. He was apprehended by civil authorities for burglary and larceny. He was being detained in a county jail pending further civil action. He was arraigned on 2 November 1971. The applicant had surrendered to civil authorities on 2 November 1971. Bond was not posted and the applicant remained in civil confinement. A Criminal Investigation Division (CID) Report of Investigation, dated 12 December 1971, reiterated the Military Police Report. 24. On 24 February 1972, a Report for Suspension of Favorable Personnel Actions was completed because the applicant had been AWOL since 27 September 1971. 25. On 24 February 1972, a Military Police Report was completed stating on 16 February 1972, the applicant had been sentenced for burglary and larceny and was to serve 5 to 23 months in the county jail. 26. On 6 March 1972, an Enlisted Personnel Confined by Civil Authorities was completed, which shows the applicant had been AWOL when he was arrested for burglary and larceny. He plead guilty to the charge and was sentenced to 5 to 23 months in county jail. 27. On 6 March 1972, the commander of the US Army Personnel Control Facility (PCF) advised the applicant, in writing, that he was initiating separation action against him under the provisions of paragraph 33a, Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion); the commander stated he was taking this action because the applicant had been convicted by a civil court for burglary and larceny. The commander further informed the applicant of his right to be represented by counsel, and that he could request the appointment of a counsel to represent him before a board of officers; in addition, the applicant could elect to submit statements in his own behalf. The commander was recommending an undesirable discharge. 28. On 6 March 1973, the applicant stated he did not wish representation by counsel, he did not wish to submit a statement in his own behalf, he did not wish to appeal his civil conviction of burglary and larceny, he had not appealed his conviction, and he did not wish consideration of his case by a board of officer. He understood that he could receive a discharge under other than honorable conditions and that he could withdraw his waive up until his discharge was approved. 29. On 7 April 1972, the appropriate separation authority approved the recommendation for discharge and directed the applicant's undesirable discharge under other than honorable conditions; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. 30. On 7 April 1972, the applicant was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he completed 6 months and 24 days of his 3-year enlistment contract, with 214 days of lost time. The applicant was awarded or authorized the National Defense Service Medal. 31. The applicant states, in effect, he went AWOL because of the stress of his MOS. He also states he was charged with AWOLS he did not commit. He received an undesirable discharge and but does desire the Army and did not want to be kicked out of the service. a. The applicant indicates on his application he suffers from PTSD and other mental health issues. The CMD of ARBA requested documentation regarding his PTSD and other mental health issues and the applicant did not respond. b. During the applicant's era of service, commanders were to initiate separation action when Soldiers were convicted by civil authority of offenses for which the UCMJ showed more than 1 years' confinement as a maximum punishment. According to the Manual for Courts-Martial, in effect at the time, burglary included 10 years' confinement and larceny included 5 years' confinement among their maximum punishments. c. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and Department of the Defense (DOD). However, both the medical community and DOD now 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. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. d. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part of 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 existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. e. The Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 33. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting an upgrade of his Under Other Than Honorable Conditions discharge due to Post-Traumatic Stress Disorder (PTSD) and other mental health issues. The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293 and supporting documents, his ABCMR Record of Proceedings (ROP), and his separation military documentation. b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Army on 10 February 1971 and was discharged on 7 April 1972 under the provisions of Army Regulation 635-206, SPN 284 by reason of conviction by civil court for burglary and larceny. His service was characterized as Under Other Than Honorable Conditions. 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. d. Applicant is not service connected and there are no VA electronic medical records (JLV) available for review. e. After review of all available information, it is the opinion of the Agency psychologist that there is insufficient evidence to support that the applicant had a behavioral health condition at the time of service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board carefully considered the applicants 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's statement, his record of service, the frequency and nature of his misconduct, 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 post-service achievements or letters of support to weigh 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 XXX XX XXX 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 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-206, in effect at the time, prescribed procedures for misconduct separations. Section VI (Conviction by Civil Court) stated Soldiers who were initially convicted by a civil court were subject to discharge; the Soldier had to have been convicted of an offense for which the maximum punishment under UCMJ included either death or confinement for more than 1 year. a. Soldiers who were confined by civil authority and unable to appear in person before a board of officers were advised via registered mail of the following: the proposed discharge action; the type of discharge that could be issued; and the fact the elimination action was suspended to give him the opportunity to request counsel and, in the event of the Soldier's absence, to have counsel present the Soldier's case before the board; to submit statements in his own behalf; and/or to waive his rights. b. A Board of officers was convened to determine whether the Soldier should be retained or discharged. The board's proceedings were to include a verbatim record of its findings and recommendations. The board's recommendations were limited to either retention or separation; if the determination was separation, the board was to recommend the type of discharge to be issued. On receipt of the board's proceedings, findings, and recommendations, the general court-martial convening authority/separation authority was required to act on the board's results; the separation authority's action could not be more severe than that recommended by the board. An undesirable discharge under other than honorable conditions was normally furnished to Soldiers discharged under this provision. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed burglary included 10 years' confinement and larceny included 5 years' confinement as part of their maximum punishment. 4. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court- martial conviction. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. 5. 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. 6. 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 (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. 7. 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. 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, 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. 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) AR20210008070 9 ARMY BOARD OF CORRECTION OF MILITARY RECORDS RECORDS OF PROCEEDINGS 1