IN THE CASE OF: BOARD DATE: 13 September 2023 DOCKET NUMBER: AR20230002576 APPLICANT REQUESTS THROUGH COUNSEL: an upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Brief (16 pages) * Personal Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Department of Veterans Affairs (VA) Decision Letter dated 17 September 2017 * Medical Opinion – Disability Benefits Questionnaire (DBQ) * VA Medical Records (485 pages) * Progress Notes (27 pages) * Personal Trauma Worksheet * “Carson” Memorandum dated 24 February 2016 * “Hagel” Memorandum dated 3 September 2014 * “Kurta” Memorandum dated 25 August 2017 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); 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. Counsel requests on behalf of the applicant, that he be granted an upgrade of his general, under honorable conditions discharge to honorable, as his previously undiagnosed post-traumatic stress disorder (PTSD) directly contributed to his misconduct that served as the basis for the unjust “apathy” discharge. The application defers to counsel’s brief for additional information, the full brief is available for review by the Board and states in part: a. The applicant is a U.S. Army Veteran that suffers from PTSD and schizoaffective disorder. He was subjected to racial discrimination and abuse from fellow servicemembers during his time in service which negatively affected his ability to serve and further resulted in his service-connected mental health conditions. Prior to his time in service, the applicant exhibited no evidence of mental instability, inability to follow orders, or insubordination. After routine exposure to discriminatory attacks, his job performance declined, and his mental health deteriorated. After receiving several non- judicial punishments for minor instances of being absent without leave (AWOL), the Army discharged the applicant with a general, under honorable conditions discharge for unsuitability, specifically, “apathy.” b. As a direct result of the discrimination experienced, the physical and mental abuse he endured, the applicant suffered severe mental anguish which aggravated his then undiagnosed mental health issues leading him to engage in misconduct and drink heavily. He experienced suicidal ideations in service and continued to experience intense suicidal ideations following his discharge and subsequently turned to heavy alcohol and drug use. After multiple suicide attempts, the applicant sought treatment from the VA in 1995 and was diagnosed with PTSD and schizoaffective disorder. The applicant continues to have difficulties engaging with other persons and participating in social situations despite years of treatment. c. The applicant endured racial attacks at Fort Gordon and in Germany. He was also physically assaulted and bullied by peers but was ignored when he reported the incidents to his leadership. The applicant was instead accused of misconduct, including theft, and served time in the stockade, despite providing evidence that he did nothing wrong. His attempts at reporting the abuse to his command were met with retaliation for stepping out of line. The applicant deteriorated quickly and began to act out of character. He began to hear voices, engaging in conduct he was unable to control or remember, and he suffered nightmares that continue to haunt him to this day (more than 50 years later). He experienced drastic mood changes, sporadically transitioning from calm to utter rage at different stages of his military career and was not offered help or sent to the “infirmary.” He felt out of control, disoriented, he would throw items from the windows, he did not know what was happening to him or why, and felt the Army failed to provide him the support he desperately needed. d. The applicant believes the character of discharge punishes him for conditions that were not recognized or understood at the time of his service and an upgrade of his discharge to honorable could help remedy the injustice. An honorable characterization best reflects the character of the applicant prior to the racial discrimination and the aggravated abuse that caused his mental health conditions. Since receiving treatment, he has made immense progress in improving his mental health, but still experiences suicidal thoughts and hears voices. He struggles to maintain relationship an receives regular psychiatric assistance. He requests a discharge upgrade on the grounds that his discharge from the Army was inequitable due to the racial discrimination and abuse he endured in service that aggravated his undiagnosed mental health conditions. e. The applicant and his counsel offer for consideration in post-service accomplishments that the applicant maintained housing for over 30 years despite suffering a brief period of homelessness. He keeps in regular contact with his family and grandchildren. He has also been in a relationship with his “significant other,” for over 12 years. He has worked in substance abuse counseling, harm reduction, and community outreach in and throughout, including ACR Health and Arise Incorporated, providing support and guidance to underprivileged communities. He is also a sponsor for AA and NA twelve step programs in the Syracuse area. He regrets the way his service ended, but he is a proud Veteran and is active in the Veteran community. 3. The applicant and his counsel provide: a. The applicant’s personal statement, reiterating much of the same statements shared in counsel’s brief. Additional information not included are his family life. The applicant notes that he grew up in a strict household and his father was tough on him, but he never experienced any physical or emotional abuse as a child. He joined the Army during the Vietnam era and believes that was an extremely discriminatory time. While he did not serve in Vietnam, he worked with a support unit in Europe for theater operations which is where he experienced much of his physical and mental abuse, much of it motivated by racism. He was only 19 years old when he joined the Army, and he did not grow up with racism. He knew it existed, but he was not raised with it and when faced with it in the Army, he found himself making poor choices. After the military he did his best to put it behind him, he married in 1981 and was widowed in 1992 with three children. He subsequently earned his Human Resources degree at Howard University, worked in leadership with the youth, has 10 grandchildren of his own, but felt he could not reach his full potential living with his troubles every day. He continued to turn to drugs to self-medicate. It was not until he sought help from the VA that he realized the extent of his problems. Since receiving treatment, medication, and learning tools to cope with his disorder, his lifestyle has changed, and he’s learned to take care of himself. b. A VA letter, dated 17 September 2019, shows the applicant received a combined evaluation of 100% effective 18 April 2019 for PTSD with schizoaffective disorder (depressed type) and cocaine use disorder). c. A Medical Opinion – DBQ (5 pages), dated 26 July 2019, shows the applicant underwent an in-person examination for PTSD and bipolar disorder, in addition to a review of his VA e-folder. d. His VA medical records (485 pages), as requested by the applicant in support of his application. e. Progress Notes (27 pages) shows the applicant participated in a PTSD program and includes a detailed assessment. f. A Personal Trauma Worksheet shows the applicant stated he was a victim of military sexual trauma and it was documented in his medical records. g. The below listed documents to be discussed in the service record and/or references: * DD Form 214 * “Carson” Memorandum dated 24 February 2016 * “Hagel” Memorandum dated 3 September 2014 * “Kurta” Memorandum dated 25 August 2017 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 27 August 1968. b. His DA Form 20 (Enlisted Qualification Record) shows he served in Germany from 3 March 1970 to 21 June 1970. It also shows he had excellent conduct and efficiency ratings during his time in training and it changed upon reporting to his first duty assignment. It also shows his assignments as follows: * 18 December 1968 – 21 March 1969: Fort Gordon, GA & Confinement Center Stockade * 11 April 1969 – 4 February 1970: Fort Bragg, NC * 10 March 1970 – 21 June 1970: Germany c. A DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 18 February 1969 for one specification of failure to go to his appointed place of duty on 10 February 1969. His punishment included 7 days extra duty and 7 days restriction. d. He was convicted by a special court-martial on 20 March 1969 for one specification of stealing a wristwatch, a value of about $18.00 more or less, the property of another Soldier. His sentence included confinement at hard labor for six months, forfeiture of $68.00 per month for six months, and reduction to the lowest enlisted grade. e. On 21 March 1969, the convening authority approved the sentence, and only so much of the sentence extending to confinement at hard labor for three months, forfeiture of $68.00 per month for three months, and reduction to the lowest enlisted grade, ordered the sentence executed. f. Special Court-Martial Order Number 429, dated 11 April 1969, approved the unexecuted portion of the sentence to confinement to hard labor and suspended t until 11 June 1969, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence to confinement would be remitted without further action. g. He accepted nonjudicial punishment for numerous acts of misconduct as follows: * 29 January 1970 – absent without leave (AWOL) from 20 January 1970 to 27 January 1970; his punishment included reduction to private (PVT)/E-1 and forfeiture of $25.00 for one month * 15 April 1970 – AWOL from 7 April 1970 to 10 April 1970; his punishment included forfeiture of $30.00 * 1 May 1970 – failure to be at his appointed place of duty, extra duty; his punishment included forfeiture of $30.00 * 19 May 1970 – failure to be at his appointed place of duty, consolidated mess; his punishment included forfeiture of $32.00; the applicant appealed his punishment and stated he felt each Soldier should be treated equally and, in his case, he felt it was being violated * 20 May 1970 – the appeal authority denied the applicant’s request and stated the punishment agreed was not unjust nor disproportionate to the offense h. On 29 May 1970, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Enlisted Personnel) for unsuitability. The reasons for his proposed action were because he lacked the interest to perform in a satisfactory manner in military service and he had shown undisciplined behavior in many of his actions concerning military matters. i. On 1 June 1970, after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he elected to waive consideration by a board of officers and waive a personal appearance * he indicated matters were submitted; however, the separation packet was void of a statement j. His immediate commander initiated action to separate him under the provisions of AR 635-212 for unsuitability, specifically recommended in accordance with the provisions of paragraph 12. The commander listed his misconduct and further indicated the applicant did not get along well with his supervisor. k. On 11 June 1970, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-212, for unsuitability. He would be issued a General Discharge Certificate. l. Special Orders 121, dated 18 June 1970, indicated the discharge for unsuitability was approved with a flight date of 21 June 1970. m. On 22 June 1970, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 shows he completed 1 year, 8 months, and 18 days of active service with 39 days of time lost. It also shows he was awarded or authorized: * National Defense Service Medal * Marksman Marksmanship Badge witk Rifle Bar (M-16) * Expert Marksmanship Badge with Rifle Bar (M-14) 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation (AR 635-212), a member may be separated for unsuitability when it is clearly established that he/she will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 8. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of the characterization of his service from under honorable conditions (general) to honorable. The applicant contends PTSD mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 27 August 1968. * The applicant accepted an Article 15 for one specification of failure to go to his appointed place of duty on 10 February 1969. * He was convicted by a special court-martial on 20 March 1969 for stealing a wristwatch. His sentence included confinement at hard labor for six months, forfeiture of $68.00 per month for six months, and reduction to the lowest enlisted grade. * He accepted nonjudicial punishment for numerous acts of misconduct as follows: * 29 January 1970 – absent without leave (AWOL) from 20 January 1970 to 27 January 1970; * 15 April 1970 – AWOL from 7 April 1970 to 10 April 1970; * 1 May 1970 – failure to be at his appointed place of duty, extra duty; * 19 May 1970 – failure to be at his appointed place of duty. * On 22 June 1970, he was discharged from active duty with a general, under honorable conditions characterization of service. The basis for this action was “unsuitability, specifically “apathy”, and that that the applicant lacked the appropriate interest in the military service to perform in a satisfactory manner and has shown an undisciplined behavior in many of his actions concerning military matters. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, ABCMR Record of Proceedings (ROP), DD Form 214, legal counsel’s brief, personal statement, VA decision letter, medical records, progress notes, personal trauma worksheet and documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Due to the period of service, no active-duty electronic medical records were available for review. The applicant has an extensive history of psychiatric care via the VA and his medical record indicates that he has experienced homelessness and has been psychiatrically hospitalized. The applicant is 100% service-connected due to PTSD. His most recent VA psychiatric note, dated 25 August 2023, indicates the applicant receives psychotherapy and medication management for the treatment of Schizoaffective Disorder-bipolar type; PTSD (secondary to physical and emotional abuse in childhood, and sexual and physical abuse in the military); and Opioid/Cocaine/Alcohol Use Disorders in remission. A DBQ dated 26 July 2019, diagnosed the applicant with PTSD and Schizoaffective Disorder, depressed type, and indicates the applicant began to hear command voices and delusions of paranoia while in the service. In a personal trauma worksheet submitted by the applicant, he reports being sexually assaulted by a sergeant after a social gathering. The same sergeant sexually assaulted him again about one week after the first incident. The applicant stated being raped three time by this sergeant. Per the evaluator, the applicant’s file indicated multiple markers before and after the incident of MST. In a PTSD Program intake dated 30 August 2019, the applicant also reported his experience of military sexual trauma (MST), as well as racially based harassment and being both verbally and physically attacked while in military service. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support that the applicant had both a mitigating BH condition and experience (MST) during his time in service. He has since been diagnosed with PTSD and Schizoaffective Disorder and is 100% service- connected by the VA. His mental health condition was likely present during his time in service and this condition along with his experience of MST mitigates the reason of his discharge from military service. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends PTSD mitigates his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant was diagnosed with chronic PTSD and Schizoaffective Disorder by the VA and there is evidence in his record of MST. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant was diagnosed with PTSD and Schizoaffective Disorder and is 100% service-connected by the VA. In addition, a DBQ dated 26 July indicates that the applicant experienced psychotic symptoms such as hearing command voices and delusions of paranoia, while in the service. Psychosis is a loss of contact with reality, that impacts one’s thoughts and perceptions making it difficult to determine the difference between what is real from what is not. Of note, there is evidence in the record of the applicant reporting that at times he was unable to recall the actions he was accused of. When experiencing psychosis, people may hear or believe things that are not real and this can impair their ability to differentiate between right and wrong. Given the nexus between psychosis and dysregulated behaviors, it is likely that the applicant’s psychosis contributed to the behaviors that led to his discharge. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding sufficient evidence to support that the applicant had both a mitigating BH condition and experience (MST) during his time in service. He has since been diagnosed with PTSD and Schizoaffective Disorder and is 100% service-connected by the VA. 2. In addition, the Board noted the opine found evidence in the record of the applicant reporting that at times he was unable to recall the actions he was accused of. When experiencing psychosis, people may hear or believe things that are not real, and this can impair their ability to differentiate between right and wrong. The Board found sufficient evidence of in-service mitigating factors for the misconduct to grant relief. 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 is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by re-issuing the applicant’s DD Form 214 for the period ending 22 June 1970 to show his characterization of service honorable. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, 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 635-212 (Discharge Unfitness and Unsuitability), establishes policy and provides procedures and guidance for eliminating personnel who are found to be unfit or unsuitable for further military service. a. Paragraph 3b. states action will be taken to separate an individual for unsuitability when it is clearly established that it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and he meets retention medial standards (AR 40-501) (para 9a). An individual separated by reason of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Chapter 13 of the regulation states a member may be separated for unsuitability when it is clearly established that he/she will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. The service of members separated because of unsuitability will be characterized as honorable or general, under honorable conditions, as warranted by their military record. 3. Hagel Memorandum, dated 3 September 2014, states liberal consideration will be given in petitions for changes in characterization of service to service treatment records entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions. Special consideration will be given to VA determinations which documents PTSD or PTSD related conditions connected to military service. In cases in which PTSD or PTSD related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. 4. 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, 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, 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. 5. 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 based on 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. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002576 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1