IN THE CASE OF: BOARD DATE: 4 March 2021 DOCKET NUMBER: AR20200001001 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC86-08672 on 13 January 1988. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 January 2020, with self-authored statement * DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge), dated 19 July 1972 * ABCMR Docket Number AC86-08672, dated 13 January 1988 * Regional Gastrointestinal Physician Letter, dated 18 October 2000 * three Character Reference Letters, dated between 6 November and 11 December 2008 * Congressional Representative Letter with Privacy Release Form, dated 27 January 2020 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant’s case by the ABCMR in Docket Number AC86-08672 on 13 January 1988. 2. The applicant states he served his country in combat and was wounded. He was very young and scared, and did not understand the penalty of being absent without leave (AWOL). He believes he contracted Hepatitis C after being wounded. 3. In a self-authored statement, the applicant contends he has tried unsuccessfully to have his discharge upgraded for 15 years. Because of his lack of education, inability to reason with consequences, and his inability to deal with domestic problems involving his wife and three children, he made a mistake for which he has since paid the price. Additionally, he inquires about Department of Veterans Affairs (VA) benefits to which he may be entitled. 4. The applicant enlisted in the Regular Army on 5 May 1967. 5. The applicant served in the Republic of Vietnam from on or about 24 October 1967 through on or about 9 October 1968. 6. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 28 October 1968 through on or about 28 May 1971. 7. A Mental Status Evaluation, dated 1 July 1971, shows the applicant underwent a mental status examination and was determined to be mentally responsible, with no significant mental illness. 8. The applicant’s immediate commander notified him on 2 July 1971 that he was being recommended for separation from service under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), paragraph 45, for AWOL. 9. The applicant consulted with counsel on 6 July 1971 and acknowledged that he had been advised of the basis for the recommended actions to separate him under the provisions of Army Regulation 635-206, for lengthy AWOL. He acknowledged that he could expect to encounter substantial prejudice in civilian life if he received a UOTHC discharge, and he could be ineligible for many or all benefits as a Veteran. He elected not to submit a statement in his own behalf. 10. The applicant’s immediate commander formally recommended the applicant’s separation from service on 8 July 1971, under the provisions of Army Regulation 635-206, paragraph 45. 11. The separation authority approved the recommended discharge on 28 July 1971, under the provisions of Army Regulation 635-206, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The applicant was discharged on 16 August 1971. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and his service was characterized as UOTHC. 13. A DD Form 215 (Correction to DD Form 214) was created on 19 July 1972, which amended the applicant’s DD Form 214 by adding 11 months and 16 days of foreign service in the Republic of Vietnam, and by showing he was awarded or authorized the Purple Heart, Combat Infantryman Badge, and the Gunner First Class Marksman Badge with Rifle Bar. 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged and denied his requests on 6 November 1973 and 4 August 1982. 15. A portion of the applicant’s request concerns healthcare and other related VA disability benefits. These issues are outside the ABCMR’s purview and should be addressed to the VA. 16. The applicant provides: a. A letter from his attending physician, which states the applicant has been diagnosed with chronic active hepatitis, secondary to viral C. His physician states there is an extremely good possibility that he acquired this viral infection while he was in Vietnam, when he was wounded. b. Three character-reference letters attesting to his job performance, reliability, and moral character. 17. The Board should consider the applicant’s statement in accordance with the published equity, injustice, or clemency determination guidance. 18. 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 16 August 1971 discharge characterized an under conditions other than honorable. He states: “I serve my country in combat. I was wounded, very young and scared. Did not understand the penalty of being AWOL. I believe I got hep-c after being wounded.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 5 May 1967 and was discharged on 16 August 1971 under the provisions provided in AR 635- 200, Personnel Management – Enlisted Personnel. His separation program number of 283 denotes “Misconduct/AWOL trial waived or deemed inadvisable.” c. His Enlisted Qualification Record (DA Form 20) shows the applicant was absent without leave (AWOL) from 28 October 1968 thru 28 May 1971. He was charged with this UCMJ violation. d. His pre-separation mental status evaluation was completed on 1 July 1971. All screened attributes were normal and the provider’s impression was “No significant mental illness.” He deemed the applicant mentally responsible, able to distinguish right from wrong, able to adhere to the right, and to have the mental capacity to understand and participate in board proceedings. e. There are no health records in JLV. f. An 18 October 2000 note from his gastroenterologist states that applicant has chronic active hepatitis secondary to viral hepatitis C. He opines “There is an extremely good possibility that he acquired this viral infection while he was in Vietnam when he was wounded at that time.” g. 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 UCMJ violation; 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. h. Based on the information currently available, it is the opinion of the Agency medical advisor there was no mental health condition which would mitigate the actions which led to the applicant’s discharge with a characterization of service he received. Therefore, it is recommended that his discharge not be re-characterized. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. One potential outcome discussed was to grant a discharge upgrade based upon the applicant’s Vietnam service and receiving a Purple Heart during that service. However, based upon the lengthy period of AWOL leading to the applicant’s separation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VII, paragraph 45 (Desertion and AWOL) of this regulation states an individual may be considered for discharge under this regulation when it is determined by an administrative review of all facts that there is substantial evidence to support a determination of desertion or AWOL. It provided that an undesirable discharge was normally considered appropriate for members separated under this regulation. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001001 6 ABCMR Record of Proceedings (cont) AR20200001001 1