IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210012892 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration of his previous request to upgrade his general under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant's photo in uniform * Extract from applicant's military medical records * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC93-09778 on 14 July 1993. 2. The applicant states, while in basic combat training (BCT), they sent him to the hospital to remove a large growth that had resulted from a pugil stick injury; after undergoing surgery, the doctors placed a large tube in his head and kept him out of his BCT unit for 3 1/2 weeks. The applicant offers additional details in a self-authored statement: a. The applicant was 17 years old when he enlisted, and he arrived for BCT at Fort Ord, CA in January 1973. After about 4 weeks of training, he incurred the injury to his head (right temporal region); his head became very swollen and his BCT leadership instructed to see a doctor. Following an examination, the doctor declared the applicant's injury was very serious and said the applicant required immediate attention; the applicant underwent surgery and remained in the hospital for 6 days. b. The surgery left a huge hole in his skull; the surgeons had had to saw through the bone, and they left a large drainage tube hanging out of his head. Having the surgery and not returning to his BCT unit meant he was unable to graduate with his BCT class. In addition, some people in his unit made fun of the hole in his head and, when coupled with the harassment he had already been getting for a very large birthmark on the left side of his face, the applicant affirms he was really struggling. c. The applicant maintains the Army should have given him an honorable discharge; he was only 17 and had to endure a lot of humiliation and ridicule. The applicant feels the Army did not treat him fairly based on the fact his leadership did not allow him to rejoin another BCT unit and he never received an assignment. 3. The applicant's service records show: a. On 12 February 1973, after obtaining his parent's permission, the applicant enlisted into the Regular Army for 2 years; he was 17 years old. Orders transferred him to Fort Ord for BCT, and he arrived at his unit, on 19 February 1973. On 27 March 1973, medical authority hospitalized the applicant and removed a "Dermoid Cyst (benign cystic teratoma)" over his right eye; upon release from the hospital, the doctors placed the applicant on 7-days' convalescent leave. b. On 9 April 1973, the applicant's BCT unit reported him as absent without leave (AWOL). The applicant returned to military control on 14 May 1973, and, on 17 May 1973, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for his period of AWOL (9 April until 14 May 1973 (35 days). c. On 18 June 1973, the applicant departed his unit again in an AWOL status; he returned to military control on 8 July 1973, but left once more, on 12 July 1973. On 22 July 1973, the applicant returned to military control. d. On 23 July 1973, the applicant underwent a mental hygiene evaluation; the examiner (a specialist four (SP4/E-4) Social Work Specialist) stated, "The subject has a history of marked social inadaptability prior to and during his tour in the military. The subject's condition is part of a character and behavior disorder due to deficiencies in emotional and personality development of such a degree as to seriously impair his function in the military service." The Social Work Specialist's impression of the applicant was the following: "Immature personality with anti-social tendencies." (The document shows someone signing for an Army Medical Corps psychiatrist reviewed and approved the Social Work Specialist's report). e. On 23 July 1973, the applicant accepted NJP again for his subsequent two periods of AWOL (18 June until 8 July (20 days) and 12 to 22 July 1973 (10 days)). f. On 24 July 1973, the applicant's BCT commander advised him, via memorandum, of his intent to separate the applicant for unsuitability due to a character and behavior disorder, under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). That same date, a medical doctor rendered the applicant's Report of Mental Status Evaluation (DA Form 3822-R). The doctor's impressions of the applicant included that the applicant had no significant mental illness and met the retention standards prescribed in chapter 3 (Medical Fitness Standards for Retention, Promotion, and Separation, Including Retirement), AR 40-501 (Standards of Medical Fitness). g. On 24 July 1973, the commander prepared his separation recommendation. (1) In support of his recommendation, the commander described the applicant's previous AWOLs and resulting NJP actions, stating, "[Applicant] underwent an operation on 27 Mar 73 for removal of a tumor above his right eye. EM was released and granted a 7-day convalescent leave. EM went AWOL while on convalescent leave and returned to unit on 14 May 1973. EM returned to hospital for a check-up and was put on a 30-day profile, which started 21 May 1973 and ended on 20 June 1973. On 18 June 1973, EM went AWOL again and returned on 9 July 1973. On 11 July 1973, EM was given a rehabilitative transfer to HHC (Headquarters and Headquarters Company), 1st Bn, 1st BCT Bde. EM departed AWOL on 12 July 1973 and was DFR 13 July 1973 because of charges pending. EM returned to HHC, 1st Bn, 1st BCT Bde on 22 July 1973. He received his second field-grade Article 15 on 24 July 1973." (2) The commander additionally addressed why he did not consider other disposition as feasible: "EM's performance is characterized by repeated AWOLs and an uncooperative attitude toward authority. It is my feeling that [applicant] will continue to perform in a similar manner if left in the military. EM's poor performance is the result of his character and behavior disorder...His behavior is not intentional, but due to an incapacity to become a satisfactory Soldier within the meaning of Unsuitability." f. On 31 July 1973, after consulting with counsel, the applicant acknowledged that counsel had told him of the basis for the contemplated separation action and informed him of his rights and the effect of waiving those rights. The applicant waived his right of a personal appearance, with counsel, before a board of officers and chose not to submit statements in his own behalf. g. On 9 August 1973, the separation authority approved the BCT commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 21 August 1973, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 4 months and 5 days of his 2-year enlistment contract, with 65 days of lost time. The DD Form 214 additionally lists the awards of the National Defense Service Medal. h. On 3 June 1992, the applicant petitioned the ABCMR, requesting an upgraded character of service; the applicant argued he became sick during BCT, and he had been mistreated, harassed, and punished. The applicant acknowledged that he had made an error in judgment, but he attributed his misconduct to his young age, and he contended, because he was a minor, they had not allowed him to consult with counsel. On 14 July 1993, the Board denied the applicant's request. 4. The applicant argues the Army did not treat him fairly and should have given him an honorable discharge; he was only 17 and had to endure a lot of humiliation and ridicule. a. During the applicant's era of service, commanders used paragraph 13-5b (2), AR 635-200 to separate Soldiers for unsuitability when they had been diagnosed with a character or behavior disorder (currently termed personality disorder). The regulation specified that separation authorities could furnish either an honorable or general discharge certificate, as warranted by the Soldier's military record; however, the policy subsequently changed: (1) In December 1976, the Army revised AR 635-200 because of a civil law suit settlement. This change required a physician trained in psychiatry to have evaluated and diagnosed a Soldier with a personality disorder prior to the initiation of separation action for unsuitability. (2) Later guidance mandated the retroactive application of the foregoing changes and further expanded the policy, stating the presence of a personality disorder diagnosis would be sufficient to justify an upgrade to fully honorable, except when there were "clear and demonstrable reasons" why a fully honorable discharge should not be given. A general court-martial conviction or more than one special court-martial conviction were deemed to be examples of where "clear and demonstrable reasons" would warrant a less than fully honorable discharge. b. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 5. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 21 August 1973 under honorable conditions (general0 discharge. He states: “I was sent {to the} hospital for removal of large growth that grew from injury from pugel stick training. During basic I was removed from unit for 3 ˝ weeks with a large tube in my head. I could not return to my unit.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 12 February 1973 and was discharged on 21 August 1973 under the authority provided in Chapter 13 of AR 635-200, Personnel Separations – Enlisted Personnel (5 December 1972). The separation program number (SPN) 264 denotes “Unsuitability, character and behavioral disorders.” The DD 214 shows a total of 65 lost days under 10 USC 972 from three periods of absence without leave. c. This request for a discharge upgrade was previously denied in full on 14 July 1993 (AC93-09778). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant and, because the first adjudication was prior to the institution of liberal consideration policies, any potential mitigating behavior health diagnosis(s). d. Because of the period of service under consideration, there are no encounters in AHLTA and no documents in iPERMS. e. No new probative documentation was submitted with the application. f. Medical documentation shows the applicant was admitted to the hospital from 27 March 1973 until 2 April 1973 for excision of a dermoid cyst which had appeared above his right eye 3 months earlier (prior to enlistment). g. Documentation shows the applicant went AWOL on three occasions for which he received two Article 15’s. h. There are only 15 notes in JLV and no diagnosed mental health condition. i. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations or other actions with led to his administrative separation; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. j. Given the current documentation, it is the opinion of the Agency Medical Advisor that neither a change in the authority paragraph and/or narrative reason for his discharge nor an upgrade of his discharge is warranted. BOARD DISCUSSION: 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, and the reason for his separation. The Board considered the medical records, VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in- service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 to amend the decision of the ABCMR set forth in Docket Number AC93- 09778 on 14 July 1993 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Separation authorities were to conditions the issuance of an honorable discharge based upon proper military behavior and proficient duty performance. In addition, separation authorities could characterize a Soldier's service as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. b. Chapter 13 established policies and procedures for the elimination of enlisted personnel who were determined to be unfit or unsuitable for continued military service. Paragraph 13-5b (2) stated commanders could separate Soldiers who, as determined by medical authority, were diagnosed with character and behavior disorders, when those disorders were chronic and recalcitrant to attempts at rehabilitation and the behaviors interfered with the Soldier's ability to perform his/her duties. c. In December 1976, the Army revised AR 635-200 because of a civil suit settlement. This change required a physician trained in psychiatry to have evaluated and diagnosed a Soldier with a personality disorder prior to the initiation of separation action for unsuitability. Later guidance mandated the retroactive application of the foregoing changes and further expanded the policy, stating the presence of a personality disorder diagnosis would justify an upgrade to fully honorable, except when there were "clear and demonstrable reasons" why a fully honorable discharge should not be given. A general court-martial conviction or more than one special court-martial conviction were deemed to be examples of where "clear and demonstrable reasons" would justify a less than fully honorable discharge. 2. Diagnostic and Statistical Manual (DSM II) of Mental Disorders, in effect at the time, provided the classification of mental disorders using a common language and standard criteria. The DSM II identified personality disorders and, in some cases, provided descriptions, to include the following: * Antisocial personality – "individuals who are basically unsocialized and whose behavior pattern brings them repeatedly into conflict with society...They are incapable of significant loyalty to individuals, groups, or social values...They are grossly selfish, callous, irresponsible, impulsive, and unable to feel guilt..." * Other Personality Disorders of Specified Types (Immature Personality) 3. On 25 August 2017, the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance to DRBs and BCM/NRs pertaining to requests by Veterans for the modification of their discharges due in whole or in part to mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. Boards were told to give liberal consideration to Veterans petitioning for discharge relief when the application was based, in whole or in part, on the aforementioned conditions or experiences. The guidance further described acceptable evidence sources and criteria, and required Boards to evaluate the conditions or experiences presented in evidence as potential mitigation for the misconduct that led to the discharge. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012892 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1