ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160012969 APPLICANT REQUESTS: reconsideration of a previous denial to upgrade his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Regional Office (VARO), Cleveland, OH Rating Decision, 13 August 2013 * VA letter, 16 August 2013 * Applicant's undated statement * Applicant's statement, 11 September 2013 * Case worker, Mr. K, statement, 11 September 2013 * Employer statement, 14 September 2013 * VARO, Cleveland Decision, 12 September 2014 * VA letter, 16 September 2014, page 1, 3 and 5 * Statement from Ms. W, 16 October 2017 * Certificate of service from VA, OH FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130018875 on 22 July 2014. 2. The applicant related several instances in the Republic of Vietnam that still haunt him to this day. a. While hauling a load of rockets (mortars) into Cambodia they traveled on a muddy, sloppy road through heavily dense jungle. Along the way there were personnel carriers (PC) that were blown up and shoved off the road. They were full of blood and guts. b. When hauling supplies between Chu-Chi and Dau-Tieng, for 3 days in a row, a truck right in front of him would hit a landmine. He would see pieces of the truck flying into the air. He had to grab his rifle and ammo pack and get under his truck because he knew they were going to ambush them. c. When going back from Tay-Ninh to Chu-Chi just about every day there would be piles of human bodies along the side of the road. d. While at Tay-Ninh the Vietcong would attack the base camp at night. They would go out in the morning and pick up all the bodies and pile them up outside the gate of the base camp for family members to pick up. Bodies not claimed by night would be thrown in a hole dug by a dozer and covered up. 3. On 15 September 1969, the applicant was inducted into the Army of the United States. At the time of his induction the applicant had an 11th grade education. 4. On 26 February 1970, the applicant was assigned to B Company, 725th Maintenance Battalion in the Republic of Vietnam. He received "excellent' ratings in conduct and efficiency ratings while assigned. 5. On 13 July 1970, the applicant was discharged to immediately reenlist. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period from 15 September 1969 - 13 July 1970. He completed 9 months and 29 days of active service that was characterized as honorable. 6. On 9 April 1970, the applicant was promoted to specialist (SP) 4. 7. On 14 July 1970, the applicant reenlisted in the Regular Army for 3 years. 8. On 18 August 1970, the applicant was awarded the Army Commendation Medal for meritorious achievement in connection with military operations against a hostile force in the Republic of Vietnam from 1 June 1970 to 31 July 1970. 9 On 24 October 1970, the applicant was assigned to Headquarters and Headquarters Company (HHC), 2nd Brigade, 25th Combat Service Support (CSS) Battalion. He received "excellent" ratings in conduct and efficiency while assigned. 10. On 18 February 1971, the applicant accepted non-judicial punishment (NJP) for being absent without leave (AWOL) from 13 -14 February 1971. 11. On 5 March 1971, the applicant was assigned to the 120th Transportation Company. He received "excellent" ratings in conduct and efficiency while assigned. 12. On 15 July 1971, the applicant was awarded the Army Commendation Medal (second award) for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from February 1970 to June 1971. 13. On 17 September 1971, the applicant was returned to the U.S. and on 24 October 1971, he was assigned to the 418th Transportation Company at Fort Hood, TX. 14. The applicant accepted non-judicial punishment (NJP) on: a. 6 January 1972 for failure to go at the time prescribed to his appointed place of duty, kitchen police (KP). b. 7 February 1972 for failure to go at the time prescribed to his appointed place of duty, KP. c. 29 June 1972 for two specifications of failure to go at the time prescribed to his appointed place of duty, extra duty and formation and for failure to obey a lawful general regulation, sleeping in a parked car in the parking lot. His punishment included reduction to private first class (PFC)/pay grade E-3. 15. On 24 July 1972, the applicant was assigned to the 628th Transportation Company at Fort Hood. 16. On 11 August 1972, the applicant went AWOL and was apprehended by civil authorities on 4 June 1973. 17. On 14 June 1973, court-martial charges were preferred against the applicant for being AWOL from on or about 11 August 1972 to on or about 4 June 1973. 18. Chapter 10 of AR 635-200, in effect at the time, stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. 19. On 15 June 1973, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He indicated he was submitting a statement in his own behalf. a. He acknowledged he understood the elements of the offense he was charged with and he was: * making the request of his own free will * advised he might be furnished an Undesirable Discharge Certificate b. In his statement, the applicant stated because of the Army he lost his wife and two children and the Army turned him into an alcoholic. Because the army caused so many problems for him he turned to drinking. He wanted a discharge because his parents were getting a divorce and his father was in very ill health and didn't have much longer to live. He wanted to spend his father's last days with him. He stated if he didn't get out of the Army he would just keep going AWOL. 20. The applicant acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veterans' benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 21. The applicant's commander and intermediate commander recommended the applicant's request for discharge be approved and that he be issued an Undesirable Discharge Certificate. His commander stated there did not appear to be any reasonable grounds to believe that the applicant was at the time of his misconduct mental defective, deranged or abnormal. 22. On 25 June 1973, the general court-martial authority approved the applicant's voluntary request for discharge, directed he be reduced to the grade of private (E-1) and directed that he be issued an Undesirable Discharge Certificate. On 25 June 1973, he was reduced to private (E-1). 23. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that when a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade 24. On 5 July 1973, the applicant was discharged under the provisions of chapter 10 of AR 635-200 for the good of the service with an undesirable discharge. He completed 2 years, 1 month and 28 days of net active service that was characterized as under conditions other than honorable. He had 298 days of time lost. His rank and grade is shown on his DD Form 214 as private/E-1 with a date of rank as 25 June 1973. 25. AR 635-5 (Separation Documents), then in effect, stated the authorized entries for the characterization of service included "HONORABLE" and "UNDER HONORABLE CONDITIONS," and "UNDR CONDITIONS OTHER THAN HONORABLE." 26. The applicant's voluntary request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 27. On 13 August 2013, the VARO, Cleveland granted the applicant service connection for post-traumatic stress disorder (PTSD) (with alcohol abuse, in remission) with an evaluation of 30 percent (%) effective 26 June 2012. 28. On 11 September 2013, the applicant submitted a statement addressed "To Whom it may Concern." a. He rose in rank very quickly and his commander always complimented him for doing a great job. b. He saw some horrible sights while in Vietnam but while there he reenlisted for another tour of duty there. Before his second tour was over his unit was pulled out and returned to the U.S. He was transferred to the Mekong Delta for the rest of his tour. c. He was a good Soldier while in Vietnam, he did his duty with no problems at all. d. When he came back to the U.S. he could not adapt. While stationed at Fort Hood, TX he was constantly in trouble with his drinking and self-medicating. He had numerous Article 15's and he was reduced from SP4 to private (E-1). His life has been downhill ever since with his constant self-medicating, numerous DUIs (driving under the influence) and three failed marriages. e. In January 2009, he was diagnosed with PTSD. He got into counseling and AA (Alcoholics Anonymous) and has been sober ever since. He has been employed at Shaffers Restaurant for 4 years. He owns his own home for the first time since returning from Vietnam. He finally feels good about himself and continues his counseling and his AA meetings. 29. On 11 September 2013, a case worker from Recovery Services of Northwest Ohio submitted a statement in which the case worker indicates the applicant had been receiving mental health care over the past year and more. The applicant was diagnosed with PTSD and was being treated through psychotherapy sessions. 30. On 14 September 2013, the applicant's employer, Shaffers Restaurant, submitted a statement in which the employer stated the applicant had been employed since 2 May 2010. The applicant was a caring, loyal and good employee. They valued his work and they were happy he was employed at the restaurant. 31. On 12 September 2014, the VARO Cleveland granted the applicant service connection for ischemic heart disease associate with herbicide exposure with a zero percent evaluation effective 26 June 2012. His evaluation for PTSD (with alcohol abuse, in remission) was continued at 30% disabling. 32. On 16 October 2017, Ms. W submitted a statement in which she states she had known the applicant for at least 2 years. The applicant was a great asset to the Shaffers Family Restaurant. He was never late and did a great job taking care of the customers. He could always be counted on when needed. 33. On 27 April 2018, an advisory opinion was received from the Army Review Boards Agency (ARBA) Clinical Psychologist. a. The applicant contends that during his two tours of duty in Vietnam he experienced several traumatic and horrific events to include landmines, ambushes, and having to pick up and stack piles of human bodies and body parts. He contends that upon returning home from Vietnam he was constantly in trouble due to self-medicating with the use of alcohol. b. In a personal statement, the applicant reported several stressors to include losing his wife and children, becoming an alcoholic, his parents’ divorce, and failing health of his father whom he wanted to care for. He further indicated that he wanted to spend the last days with his father and that he would continue to go AWOL if he was not discharged. c. Based on a thorough review of available medical records, there is evidence that the applicant meets the criteria for PTSD which can be associated with the alcohol and substance abuse. Supporting medical documentation provided by VA indicates the applicant has received mental health services for trauma related experiences and alcoholism. d. The applicant's unauthorized absences; however, appear to be more so related to family stressors rather than deployment experiences, as indicated in his personal statement regarding the health of his father and his desire to be with him. e. In summary, although the applicant has a diagnosis of PTSD, this condition does not mitigate the misconduct (unauthorized absences) that led to his early separation from service. This does not negate the applicant’s post-service diagnosis, disability rating and treatment from the VA. The VA conducts evaluations based on different standards and regulations. The available evidence does not support a change of characterization. 34. On 30 April 2018, the applicant was provided a copy of the above advisory and given the opportunity to submit a rebuttal or additional statements. The applicant has not provided any additional information. 35. The direction from the Secretary of Defense, dated on 3 September 2014, the Hagel Memorandum, concerning the revised PTSD criteria, detailed medical considerations and mitigating factors and the clarifying guidance issued by the Undersecretary of Defense for Personnel and Readiness on 25 August 2017, the Kurta Memorandum, should be applied in the review of this case. 36. The applicant's record shows he had less than a 11th grade education at the time of his induction. He successfully served in the Republic of Vietnam for 18 months and 21 days and he was awarded two Army Commendation Medals for his service there. He received "excellent" ratings in conduct and efficiency until after he returned from the Republic of Vietnam. He had one previous honorable discharge. 37. The Board should consider all factors in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, and applicable regulations, guidance, and policy. In weighing the applicant’s statement, record of service prior to and while in Vietnam, misconduct, and post service PTSD diagnosis, the Board carefully considered the revised PTSD criteria, detailed medical considerations and mitigating factors in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. The Board finds that the applicant’s request to upgrade the characterization of his service to "Under Honorable Conditions" is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :X 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 the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period 14 July 1970 - 5 July 1973 to show: * the characterization of his service as "UNDER HONORABLE CONDITIONS." ___________X________________ Chairperson 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): Not Applicable REFERENCES: 1. AR 600-200, in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 2. AR 635-5, then in effect, stated the authorized entries for the characterization of service included "HONORABLE," "UNDER HONORABLE CONDITIONS" an UNDER CONDITIONS OTHER THAN HONORABLE." 3. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under conditions other than honorable and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. This is sometimes referred to as the Hagel Memorandum. 5. A memorandum from the Secretary of Defense, dated 25 August 2017, known as the Kurta Memorandum, provided clarifying guidance regarding mental health conditions, sexual assault, and sexual harassment when reviewing requests for changes in discharges. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Invisible wounds are some of the most difficult cases and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief. This clarifying guidance ensures fair and consistent standards of review for veterans with mental health conditions, or who experienced sexual assault or sexual harassment regardless of when they served or in which Military Department they served. This referred to as the Kurta Memorandum. a. Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including sexual assault. b. Evidence may come from sources other than a veteran's service record. c. Evidence may also include changes in behavior; inability of the individual to conform their behavior to the expectations of a military environment; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues. d. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including behavior consistent with experiencing sexual assault or sexual harassment. e. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. f. Mental health conditions, including PTSD; TBI; sexual assault; and sexual harassment impact veterans in many intimate ways, are often undiagnosed or diagnosed years afterwards, and are frequently unreported. g. Mental health conditions, including PTSD; TBI; sexual assault; and sexual harassment inherently affect one's behaviors and choices causing veterans to think and behave differently than might otherwise be expected. h. Reviews involving diagnosed, undiagnosed, or misdiagnosed TBI or mental health conditions, such as PTSD, or reported or unreported sexual assault or sexual harassment experiences should not condition relief on the existence of evidence that would be unreasonable or unlikely under the specific circumstances of the case. i. Service members diagnosed with mental health conditions, including PTSD; TBI; or who reported sexual assault or sexual harassment receive heightened screening today to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate. Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge. However, when compared to similarly situated individuals under today's standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care. 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. ABCMR Record of Proceedings (cont) AR20160012969 11 1