IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210011395 APPLICANT REQUESTS: * Upgrade his general discharge under honorable conditions to honorable * Permission to appear personally before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit A – Applicant's Declaration * Exhibit B – Applicant's Military Records * Exhibit C – Applicant's Civilian Medical Records 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, following two attempted suicides, the Army found him unsuitable for continued military service based on a "character defect" and discharged him under honorable conditions. Under current standards, which better recognizes mental health issues, the applicant contends his treatment would have involved necessary medical/psychiatric attention rather than simply relegating his behavioral health condition to the designation of "character defect." The applicant's counsel provides additional arguments in a separate brief: a. Counsel reiterates the applicant's requests and adds, to the extent the Board reviews or relies upon information not contained in the applicant's submission, the applicant requests copies of all such information and the opportunity to respond to that information. b. Introduction. (1) Counsel states the applicant enlisted in June 1966 at the age of 17; he faced a steady stream of harassment from fellow Soldiers and his commanding officers due, in part, to his religion (the applicant is Jewish). The constant verbal and physical harassment wore on the applicant and he started to struggle with behavioral health issues; he believed the only way out was to kill himself, and he attempted suicide twice by taking drug overdoses. (2) Instead of providing the applicant with psychiatric help, the Army quickly discharged him under honorable conditions. In the context of current standards, the Army would now have seen the applicant's suicide attempts as the symptom of behavioral health conditions rather than the basis for a character and behavior disorder separation. Nonetheless, even under prior standards, the applicant's suicide attempts and related mental health symptoms should not have resulted in a less than honorable character of service. c. Facts. (1) The Army discharged the applicant 14 months after he enlisted; at the time of his separation, the applicant's leadership painted him as an immature and emotionally unstable individual with a nonconformist and rebellious attitude. While it is undeniable that the applicant had some issues, leadership's characterizations are far from accurate and do not convey a complete picture of the applicant's service; in addition, such comments do not warrant a less than honorable discharge. (2) The applicant's entry on active duty was not a smooth transition; as the youngest member of his unit, and the only Jewish recruit, the applicant became the target of near constant bullying; the harassment took both verbal and physical form. Despite the abuse, the applicant attempted to remain focused on the job at hand, and, as a result, he received "Excellent" conduct and efficiency ratings and rose to the rank/grade of private first class (PFC)/E-3. (3) At the same time the applicant dealt with harassment, he also had family issues to contend with; he learned his mother required hospitalization after his father left, following years of marriage, and started living with another woman. He later learned the hospital was releasing his mother, but she did not have a way to get home and no one was available to care for her; feeling desperate from the constant harassment and concern for his mother's welfare, the applicant departed his unit, on 4 October 1966, and his unit reported as absent without leave (AWOL). On 21 October 1966, the applicant realized his mistake and returned to base; a special court-martial's sentenced included 1-month's restriction, but the court-martial convening authority later suspended it, in part. (4) Once the applicant returned to his normal duties, the harassment resumed; feeling desperate and lacking coping skills, the applicant disobeyed a direct order. For disobeying the order, the command offered him, and he accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). (5) The applicant's unit subsequently transferred to Vietnam, but, due to his age, the applicant could not go; instead, the command transferred him to another company, located in Germany. A Soldier from the applicant's "boot camp" arrived in the applicant's new unit and told everyone about the applicant's harassment during training, and, with that, the harassment started all over again. On 19 July 1967, unable to cope with the ongoing abuse, and as he faced a mental health crisis, the applicant took an overdose of drugs; the applicant described his situation as one where he saw no other way out. Counsel points out that, until June 1967, the applicant's leadership had rated his conduct and efficiency as "Excellent." (6) Despite recognizing the applicant's attempts on his own life, the Army offered no treatment; instead, the Army moved swiftly to discharge the applicant. Just one day after attempting suicide, the applicant's commander notified him that he had initiated separation proceedings. The applicant underwent a psychiatric examination, but rather than addressing the applicant's suicide attempts, the examiner portrayed the applicant as "immature," and he recommended the applicant's discharge for unsuitability, per Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). Instead of acknowledging that the applicant's suffered from mental health problems, the examiner declared the suicide attempts were a "character defect." The Army discharged the applicant under honorable conditions and ever since, from 1967 to present day, the applicant has struggled with the stigma of a less than honorable discharge. d. Argument. (1) Counsel offers arguments as to why the Board should waive the statutory 3-year time limit for application submission. (2) Counsel asserts the applicant's less than honorable discharge has harmed the applicant and caused an injustice; under current standards, the applicant would have received an honorable character of service. Counsel emphasizes the shame felt by the applicant and states the applicant's character of service has "eaten away at him for fifty years...." Although the Army found the applicant unsuitable, the fact is the Army based the applicant's separation on his mental health issues. Counsel cites the " Memo" and "Memo" and argues these memoranda offer the basis upon which the Board can upgrade the applicant's character of service. (Counsel refers to the 3 September 2014 memorandum by then Secretary of Defense, which addressed Vietnam Veterans' upgrade requests based on unrecognized post-traumatic stress disorder; and the 25 August 2017 memorandum, by former Under Secretary of Defense, that clarified Department of Defense (DOD) policy and directed Boards apply liberal consideration in cases involving mental health conditions). (3) Counsel opines that there have been vast changes in the understanding of mental health conditions since the applicant served on active duty, and the way the Army treated Soldiers who have attempted suicide now is very different. Counsel contends, if the applicant served today, the Army would offer the applicant a medical discharge, rather than a less than honorable separation. Further, the DOD now recognizes that discharges issued prior to its policy revisions were not always fair. The aforementioned DOD guidance makes several important points: * Boards will liberally consider discharges when based on mental health * Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) are reminded that it is unreasonable to expect the same level of proof for injustice committed years ago, when mental health conditions were far less understood * Evidence of misconduct, including that which led to the Veteran's discharge, may also be proof of a mental health condition * "Conditions or experience(s) that may have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge" (4) In 1967, the Army's discharge policies were very harsh; AR 40-501 (Standards of Medical Fitness) did not even recognize mood disorders. Because of the lack of understanding that existed, the Army never gave the applicant the opportunity to separate via the Army's disability evaluation system (DES), and, despite the evidence of his suicide attempts, the examining physician who conducted the applicant's separation physical declared the applicant's psychiatric status as "normal," while still noting the suicide attempts had occurred. (5) Counsel states the applicant has suffered from a long history of major depression, which, counsel contends, started while the applicant was on active duty. Counsel observes that the concept of "Major Depressive Disorder" was not introduced in the U.S. until the 1970s; it was only added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1980, with the publishing of the third edition. The applicant's service records describe his mood as sullen and despondent (clear signs of depression); his current medical records state he has a history of "cyclical depressive episodes." Counsel points to DOD Instruction (DODI) 6130.03, Volume 1 (Medical Standards for Military Service: Appointment, Enlistment, or Induction) and argues that the DODI finds depression is evidenced by suicidality. Although this DODI establishes policies pertaining to the physical/medical standards of enlistment (and states depressive disorder, as demonstrated by any suicidality, is a disqualifying condition for enlistment), the DODI also provides criteria under which the military views depressive disorder. Per current standards, two suicide attempts would be clear evidence of depressive disorder. Counsel asserts, "The memo allows that evidence that reasonably supports more than one diagnosis should be liberally considered as supporting a diagnosis that could excuse or mitigate the discharge. Thus, even if the evidence is seen to support a finding of a 'character defect,' it can at least equally be seen to support a diagnosis of depression and should be liberally construed in [applicant's] favor." (6) Counsel contends that today the Army has policies that address the applicant's type of behavioral health conditions; specifically, AR 40-501 allows for the DES processing of Soldiers with mood disorders. Counsel cites DODI 1332.18 (DES) and asserts that DOD instructs medical evaluation boards (MEB) to be impartial and to determine not only the Soldier's fitness, but also the potential for recovery. Counsel maintains, under today's policies, there is substantial doubt a character disorder, as defined under AR 635-212, would even be considered, and (in any case), the result would be an honorable discharge. Counsel further asserts the applicant met the criteria outlined in AR 40-501 for referring Soldiers with mood disorder to an MEB; those criteria are as follows: persistent or recurrent symptoms requiring hospitalization, limitations of duty, or symptoms that interfere with the Soldier's effective military performance. In fairness to the applicant, his character of service should reflect the change in the Army's policy; counsel points out that the "Memo" states, "An honorable discharge characterization does not require flawless military service." e. Conclusion. The applicant entered the Army in a time when there was little understanding of mental illness. Because there is substantial doubt the applicant would receive the same character of service in today's Army, the Board should upgrade him to honorable and change his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) accordingly. 3. Counsel provides the applicant's self-authored statement and the applicant's civilian medical records: a. The applicant's self-authored statement. (1) The applicant recounts his entry onto active duty and notes he was the only member of his unit who was Jewish. On arrival at Fort Gordon, GA (for basic combat training (BCT)), the applicant's commanding officers tormented him, saying things like, "Hey, Jew Boy" and other derogatory comments. The men in his unit also mocked him, calling him a "dirty Jew"; the offensive remarks were constant. Due to the ongoing abuse, the applicant became very depressed; he lost hope that his situation would ever change, and he feared the continual assaults. (2) During this same period, he learned his father had left his mother to live with another woman, and his mother was in a psychiatric hospital; he desperately wanted to leave the base and visit his mother. He then found out the hospital was releasing his mother, but no one was there to care for her; the applicant had a sister, but she had been estranged from the family for a long time. With the combination of abuse he received from the members of his unit and affect of his family crisis, he felt his only option was to travel home, pick up his mother from the hospital, and care for her for a few days; he notes he was only 17 and had never dealt with such issues before. (3) Once his mother improved, he returned to his unit; a special court-martial gave him 30-days' restriction and a forfeiture of $50 per month for 3 months. As soon as he returned to duty, his unit and commanding officers once again mocked and tormented him; he reached a breaking point and had no idea what to do. After this, his unit deployed to Vietnam, but, because he was only 17, they said he could not go; they sent him instead to Germany. Someone from boot camp also showed up at his new unit, and the harassment started all over again. (4) While in Germany, an E-6 or E-7 sexually harassed him and tried to touch him on several occasions; this situation made him feel extremely ashamed and only added to his feelings of depression. When he felt he had no options left, he took an overdose of pills and tried to kill himself. When his first attempt was unsuccessful, he tried a second time. He saw a doctor on 19 July 1967, the day after his second suicide attempt. They told him to visit the doctor because the Army wanted to discharge him; as such, the only reason to see this doctor visit was to support the applicant's discharge, not for treatment. In fact, no one ever offered him any type of treatment, and, by 26 July 1967 (just one week after his second suicide attempt), the Army discharged him under honorable conditions. (5) In the more than 50 years since his discharge, the applicant has felt shame about his character of service, and he has suffered multiple periods of major depression. His condition has come and gone, and he has tried his best to deal with it. In 1974, a psychiatric hospital admitted him due to his depression; this hospital no longer exists, and he does not have copies of his medical records from this admission. (6) Despite his bouts with depression, the applicant states he has gone to live a productive life; he has never had any criminal involvement, owned several businesses, and been involved in his community. In 2017, his depression and anxiety returned and was so bad he had trouble dealing with it; he sought treatment at a university hospital and they prescribed medications that have helped control his condition. The applicant points out he has never tried to receive Department of Veterans Affairs benefits, and he is not interested in doing so now; he simply wishes to upgrade his discharge due to the shame he feels for having an under honorable conditions character of service. b. The applicant submits medical records from a civilian university hospital, dated between December 2018 and March 2019. The records show a number of medical conditions, to include Anxiety Disorder, Generalized Anxiety Disorder, Obsessive- Compulsive Disorder, Bipolar Affective Disorder, a history of aggressive and impulsive behaviors starting during the applicant's teen years, grandiose delusions, and a history of cyclical depressive episodes. 4. The applicant's service records show: a. On 21 June 1966, after obtaining his parent's permission, the applicant enlisted into the Regular Army for 3 years; he was 17 years old. Orders assigned him to Fort Gordon, GA for BCT; he graduated, on or about 25 August 1966, and orders transferred him to Fort Leonard Wood, MO for advanced individual training (AIT) in military occupational specialty (MOS) 62D (Asphalt Equipment Operator). On 21 September 1966, the applicant's AIT commander requested the applicant's move to another class because, on 12 September 1966, the supporting military hospital had admitted him (the applicant's service records indicate the applicant had contracted pneumonia). b. On 4 October 1966, the applicant's AIT unit reported him as AWOL; he returned to military control on 21 October 1966 and his leadership placed him in pre-trial confinement. On 25 October 1966, at about 1200 hours and after the applicant's release from pre-trial confinement, the applicant departed his AIT unit in an AWOL status; he returned at about 0250 hours, on 26 October 1966. c. On 29 November 1966, consistent with the applicant's pleas, a special court- martial convened at Fort Leonard Wood and found the applicant guilty of two specifications of AWOL (Article 86, UCMJ); the AWOL periods were 4 until 21 October 1966 (17 days) and 25 to 26 October 1966 (1 day). The court sentenced the applicant to restriction for 1-month and the forfeiture of $50 per month for 3 months. d. On 30 November 1966, the applicant's AIT commander completed a DA Form 1049 (Personnel Action) and requested the applicant's relief from his training unit; the commander stated the applicant had been AWOL, in pre-trial confinement, then convicted by a court-martial and released to his unit. The applicant would not be able to complete training while assigned to the commander's unit because the applicant's course of instruction was closed until March of the next year. A handwritten note on the DA Form 1049 indicated the applicant's transfer to MOS 12A (Pioneer) AIT, effective 10 December 1966. e. On 3 December 1966, the special court-martial convening authority approved the applicant's court-martial sentence and ordered its execution. On 5 December 1966, the applicant accepted NJP for disobeying the lawful order of a sergeant to help unload cement; his punishment consisted of 14-days' restriction and a forfeiture of $20 per month for 1 month. The applicant filed an appeal, arguing he was already paying a fine of $50 per month, per his court-martial. He disclosed the reason he had gone AWOL was because his mother was in the hospital and his father had left her to live with another woman; he had saved $190 and was going to send that money to his mother. He felt the additional forfeiture of $20 would be too great a burden and proposed performing extra duty instead. On 8 December 1966, the appellate authority denied the applicant's appeal. f. On 9 December 1966, a special court-martial order announced the suspension of the unexecuted portion of the applicant's 30-day restriction. On or about 9 February 1967, the applicant graduated from AIT, and orders reassigned him to Germany; he arrived at his unit, on 20 February 1967. g. Effective 1 June 1967, the applicant's chain of command promoted him to PFC. On 10 June 1967, the applicant requested reassignment to Vietnam; his company commander (First Lieutenant (1LT) D__ R. F__) recommended approval and stated the applicant's conduct and efficiency were "Excellent," and the applicant was MOS- qualified and physically fit for field service in Vietnam. On 19 June 1966, the applicant's battalion forwarded the applicant's reassignment request to the 24th Infantry Division for approval/disapproval; (the applicant's service record does not show whether higher headquarters ever approved his reassignment request). h. From 13 until 17 July 1967, and again from 17 until 18 July 1967, the supporting Neuropsychiatric (NP) Service hospitalized the applicant after he took an overdose of Valium. On 18 July 1967, a psychiatrist evaluated the applicant and wrote the following: (1) "This young Soldier with a long history of diffusely immature orientations and adjustments has been transferred overseas in February 1967, finding himself in three different assignments because of maladjustment. He finally found himself 'fed up to play Army all the time,' and took allegedly an overdose of Valium (maybe 12 to 15 tablets) prior to his first admission. Since during his first hospitalization no evidence of a psychiatric condition warranting disposition through medical channels was obtained, the Soldier was returned to full military duty with the understanding that administrative separation UP (under the provisions of) AR 635-212 would be recommended. At the time of discharge (from the hospital), he seemed to understand and be willing to 'stick it out.' However soon upon his return to his organization, he found himself displeased with another set of minor things and decided again, in an impulsive and manipulative manner, to take an overdose of maybe 6 capsules of Librium and about 5 or 6 tablets of HydroDiuril. All medications ingested by the pt. (patient) in small quantities are of a fairly harmless chemical nature, two of them being mild tranquilizers." (2) "PAST HISTORY: reveals a lifelong, emotional instability in the Soldier's family background and resulted in severe (illegible) tendencies in him and his sister, probably the result of his mother's nervous-(illegible). Approx. two years ago, his parents separated and divorced, and the Soldier took it reportedly very gravely." (3) "MENTAL STATUS: Examination during both hospitalizations revealed a young Soldier of highest degree emotional immaturity, combined with fairly good intelligence, which results in a grouchy, pouting, rebellious streak, which, at times, may be interrupted by short-lived phases of passive-dependent and sentimental feelings. However, there is no evidence of thought disorder; the Soldier's thoughts are goal- directed, his associations are intact, and his affect is appropriate. No evidence of psychosis or major neurosis, no evidence of suicidal potential of clinical significance." (4) "FINDINGS AND CONCLUSIONS: This Soldier has a chronic and severe character and behavior disorder (passive-aggressive personality), which will (illegible) attempts at counseling, administrative manipulations, or disciplinary actions and is not amenable to rehabilitory (sic) efforts which can normally be provided by the military. If retained in the service, he will prove an increasing administrative and/or psychiatric liability." (5) "RECOMMENDATION: NP clearance is given for administrative separation UP AR 635-212 for unsuitability. Prompt elimination from the service would seem to be in the best interests of the EM (enlisted member) and the Armed Forces." i. On 18 July 1967, the applicant's company commander initiated bar to reenlistment action against the applicant. (1) The commander stated he had counseled the applicant on numerous occasions and advised the applicant of the adverse consequences that might result from this (the bar to reenlistment) and similar personnel actions; despite this, the commander's efforts had been to no avail and rehabilitation efforts had failed. (2) The commander rated the applicant's conduct and efficiency as "Unsatisfactory," and he attached a "Synopsis of Conduct," which showed the applicant's 5 December 1966 NJP and 29 November 1966 special court-martial conviction. The commander also provided the following remark in the synopsis: (a) The applicant is so immature that he cannot adjust to normal duties. He is lazy and when corrected for minor infractions, becomes sullen and despondent. He resents authority and only wants to do whatever pleases him. (b) The applicant's character is such that, because of two incidents of taking an overdose of pills, the psychiatrist has recommended the applicant's elimination from the service. j. On 18 July 1967, the applicant signed a statement acknowledging the commander had counseled him about the bar to reenlistment action and he did not desire to submit a statement in his own behalf. k. On 20 July 1967, the applicant's company commander advised him, via memorandum, that he was initiating an unsuitability separation action against the applicant, under the provisions of AR 635-212. The commander stated the reasons for his action were the applicant's past NJP action, special court-martial conviction, and two drug overdoses; in addition, the commander noted that previous counseling, punishments, and rehabilitation efforts had had no beneficial effect. l. On 26 July 1967, the applicant underwent a separation physical. (1) On his Standard Form (SF) 89 (Report of Medical History), the applicant reported his health was poor and checked, "YES" to the questions, "HAVE YOU EVER ATTEMPTED SUICIDE" and "HAVE YOU CONSULTED OR BEEN TREATED BY CLINICS, PHYSICIANS, HEALERS, OR OTHER PRACTITIONERS WITHIN THE PAST 5 YEARS." In the remarks section, the applicant wrote, "Was in hospital for pneumonia and attempted suicide." The examining physician wrote, "Attempted suicide 1 week ago; pneumonia in Sep 66, hospitalized and cured." (2) The applicant's SF 88 (Report of Medical Examination) listed the following note: "Statement about attempted suicide about one week ago (took supposedly a few Librium capsules)." The report otherwise stated the applicant was qualified for separation under AR 635-212, and his physical profile showed a numerical designator of "1" (medically fit for any assignment) for "S" (psychiatric). m. On 3 August 1967, the applicant's first sergeant (1SG) and company commander executed statements pertaining to the applicant's separation action. (1) 1SG stated, since the applicant was assigned to the unit, he has displayed adjustment problems; the applicant was unable to accept the responsibility of any job for long. On his arrival, the applicant complained he could not stand outdoor work, so the leadership moved him to a cook position in the mess hall. He seemed to like that job, but only worked enough to get by. The other cooks and the mess sergeant did not like him because he did not carry his share of the load. The applicant applied for reassignment to Vietnam, and when they relieved him from his cook duties, the applicant undoubtedly let his persecution feelings get the best of him, because he took two overdoses of pills. The 1SG declared the applicant was an extremely immature individual who could not and had no desire to perform a job in the Army; rehabilitation was not possible and the 1SG was unwilling to accept the applicant for any capacity in his unit. (2) 1LT stated the applicant came to the unit with a history of maladjustment, and all members of the company made a sincere effort to help the applicant acclimate to military life. Shortly after his arrival, the applicant asked to work indoors because, he claimed, he became sick when working outside; they assigned the applicant to work as a cook in the mess hall, but his duty performance was substandard. At times, the applicant refused to work, or, if he worked, the simplest tasks required constant supervision. After repeated disciplinary attempts, on the part of the applicant's mess hall supervisors, and following repeated counseling sessions by the commander, it became necessary to remove the applicant from the mess hall and reassign him to a platoon. However, in the platoon, the applicant's performance and attitude only worsened; the commander received daily complaints about the applicant's duty performance, and the applicant's attitude fluctuated from being lazy and unconcerned to completely refusing to work. On 13 July, and again on 17 July 1966, the applicant took an overdose of pills in an attempt to commit suicide. Those attempts, along with the applicant's past performance, all indicated that rehabilitation was beyond the means provided by the military; the applicant would never adjust to military life. n. On 3 August 1967, the applicant disobeyed an NCO's order; on 4 August 1967, the applicant accepted NJP for having disobeyed the NCO and his punishment consisted of a reduction from PFC to private (PV2)/E-2. o. On 4 August 1967, after consulting with counsel (a civilian attorney advisor assigned to the 24th Infantry Division), the applicant acknowledged counsel had advised him of the basis for the contemplated separation action. The applicant waived his rights to appear personally before and have his case considered by a board of officer. In addition, the applicant elected not to submit statements in his own behalf, and he waived representation by counsel. p. On 4 August 1967, the applicant's company commander provided his separation recommendation to the separation authority; the commander noted, from 26 February to date the leadership had assigned the applicant to various duty positions and, in each instance, his duty performance was unsatisfactory. The applicant had a long history of immature actions and emotional instability; he had a "non-conformistic (sic), rebellious attitude toward Army regimentation and does not respond to rehabilitory (sic) efforts." q. On 10 August 1967, the separation authority (the applicant's battalion commander) approved the company commander's separation recommendation and directed the applicant's general discharge under honorable conditions. On 26 July 1967, orders discharged the applicant accordingly. r. The applicant's DD Form 214 shows he completed 1 year, 2 months, and 2 days of his 3-year enlistment contract, with 21 days of lost time. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) states, "NA" (not applicable). 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. The applicant requests an upgraded character of service, arguing the Army found him unsuitable for continued military service based on a "character defect," following two suicide attempts. Applicant's counsel contends, because there is substantial doubt the applicant would receive an under honorable conditions character of service in today's Army, the Board should upgrade the applicant to honorable. a. During the applicant's era of service, commanders used AR 635-212 to separate Soldiers after a diagnosis of character or behavior disorder (currently termed personality disorder). (1) In November 1972, AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212, and this change moved character/behavior disorder separations to paragraph 13-5b (2) (Unsuitability of chapter 13 – Character and Behavior Disorders). (2) On 1 December 1976, based on a civil lawsuit settlement, the Army revised AR 635-200; that revision required a Soldier's service, during the specific period addressed in the report, to form the sole basis for the Soldier's type of discharge and the character of service. In addition, a physician trained in psychiatry had to have evaluated and diagnosed any Soldier separated for unsuitability due to personality disorder. (3) Later guidance, with regard to personality disorders, mandated the retroactive application of the foregoing policy changes, and the Army expanded the policy such that Soldiers diagnosed with personality disorders became upgrade-eligible for honorable characters of service. Exceptions to this level of upgrade included those Soldiers convicted by a general court-martial, or by more than one special court-martial. b. In reaching its determination, 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. 7. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Honorable Conditions (General) discharge was due to Depression he developed, as well as MST, discrimination and physical assault he experienced during his time in service. 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 21 Jun 1966. During his active duty period, he was assigned overseas to from 26 Feb 1967 - 12 Sep 1967 (approximately). He did not receive any awards. His job positions included Cook and RD Tel Operator. A Special Court-Martial Order, dated 03 Dec 1966, found him guilty for being absent without leave (AWOL) from 04-21 Oct 1966 and 25-26 Oct 1966 while assigned to Company A, 2nd Battalion, 4th Engineer Special Training Brigade, U.S. Army Training Center, Fort Leonard Wood, MO. An Article 15 charged him with disobeying an order from an NCO to “help unload cement” (02 Dec 1966). A Request for Reassignment to U.S. Army, Vietnam, dated 10 Jun 1967 indicated, “he is MOS qualified and physically fit for field services in Vietnam.” A Synopsis of Conduct by his commander noted, “PFC is so immature that he cannot adjust to normal duties. He is lazy…becomes sullen and despondent…resents authority…because of 2 incidents of taking overdoses of drugs the psychiatrist has recommended his elimination from service.” A Psychiatric Evaluation, dated 18 Jul 1967 noted, “was hospitalized…13-17 July and from 17-18 July 1967 following manipulative suicide gestures.” The psychiatrist diagnosed him with “Passive-aggressive Personality, Chronic, severe, not in line of duty, not due to own misconduct.” A Statement from his commander, dated 03 Aug 1967 reported, “he has had adjustment problems…cannot accept responsibility of any job for long…His pouting, rebellious attitude at times borders on being disrespectful…should be eliminated from the service as unsuitable.” Another Article 15 charged him with disobeying an order from an NCO (03 Aug 1967). He received an Under Honorable Conditions (General) discharge on 12 Sep 1967 with DD-214 Reason and Authority, AR 635-212, SPN 264. c. The supporting documentation included a Psychiatric Progress Note, Cooper University Hospital, dated 15 Nov 2018 indicating, “initially seen by Dr…on 8/8/2018 and dx with OCD and anxiety. The patient is here for urgent visit for new onset of symptoms…Hx of depressed mood, difficulty getting out of bed, anhedonia. Hx of SI, passive, no plan or intent…Long hx of OCD since childhood. Describes difficulty with stepping on cracks, aligning things.” The provider diagnosed him with Anxiety Disorder, Unspecified and Rule Outs for Bipolar Disorder, psychotic disorder, thought disorder due to medical condition and Panic Disorder. In subsequent sessions, he was diagnosed with Bipolar Affective Disorder and OCD Unspecified (28 Dec 2018), along with Acute Stress Disorder (22 Jan 2019). d. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service connected disability(s). There was no available data for any medical or behavioral health notes, as well as no data on 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, MST/trauma and stressor-related symptoms. As there is an association between these symptoms and avoidant behavior, there is a nexus between applicant’s MST/trauma-stressor-related symptoms and his periods of going AWOL to include lackluster duty performance. In addition, as there is an association between MST/trauma and stressor-related symptoms and resistant, resentful attitudes toward authority figures, there is a nexus between his PTSD symptoms and the disrespectful, disobedient 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 experience an MST and develop trauma/stressor-related symptoms in a noncombat military environment. Blatant discrimination, physical abuse and intimidation, as he reported, more likely than not further aggravated his psychological distress and negative attitude while on active duty. f. Questions. (1) The applicant did have a condition that may excuse or mitigate the discharge (i.e. MST/trauma and stressor-related symptoms). (2) The condition did exist and experience occurred during military service (i.e. sexual assault, physical abuse and discrimination). (3) Finally, the condition or experience actually does excuse or mitigate the discharge - MST/trauma and stressor-related symptoms mitigates for his periods of going AWOL, disobeying orders, lackluster performance and disrespectful attitude. (4) A discharge upgrade is recommended. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board concurred with the medical review finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on the preponderance of evidence, the Board determined the evidence presented sufficient to warrant a recommendation of relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the corrections are completed to more accurately depict the military service of the applicant. 3. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 26 July 1967 showing his character of service as 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all awards and decorations. 2. AR 600-8-22 (Military Awards), currently in effect, states the National Defense Service Medal is awarded for honorable active service during the period 1 January 1961 through 14 August 1974. 3. The applicant's service records show he enlisted into the Regular Army on 21 June 1966 and successfully completed BCT. As a result, amend his DD Form 214, ending 12 September 1967, by adding the National Defense Service Medal. 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 (AR) 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder. 3. Technical Bulletin, Medical, Number 15, in effect at the time, defined character and behavior disorders; included was "passive-aggressive" behavior. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972; on 1 December 1976, the Army published additional guidance, following settlement of a civil suit. a. This revision required a Soldier's service, during the specific period addressed in the report, to form the sole basis for the Soldier's type of discharge and the character of service. In addition, a physician trained in psychiatry had to have evaluated and diagnosed any Soldier separated for unsuitability due to personality disorder. b. In connection with the foregoing changes, a DA memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," required retroactive application of the revised policies, attitudes and changes in reviewing applications for discharge upgrades, based on personality disorders. c. A second memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable, except in cases where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be a "clear and demonstrable reason" sufficient to warrant a less than fully honorable discharge. 5. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 to 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. 6. 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. 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. 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. 7. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011395 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1