ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20160013330 APPLICANT REQUESTS: change his character of service from under other than honorable conditions to general under honorable conditions or above. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statements * Department of Veterans Affairs documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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. The applicant believes that his discharge should be corrected because he was drafted and he went absent without leave (AWOL) because: * he found out that his brother went AWOL in Vietnam and his brother developed a severe drug addiction * he was scared for himself because he believed his brother was tortured and or held against his will * the thought of what his brother was going through caused him to think irrationally because he did not want the same misfortunes to happen to him * he was young and unable to cope with everything * he was on standby to go to Vietnam and was on special details to take dead bodies off of airplanes and saw how badly some Soldiers were hurt from the war * he still has dreams about that and wakes up in cold sweats thinking someone is trying to kill him 3. The applicant further states the characterization of his service will prevent continued receipt of a pension from the Department of Veterans Affairs. He states he is totally disabled and cannot work and his pension is his only income. He notes, in effect, that his misconduct was minor, but he paid for it with time in the stockade. 4. He was inducted in the Army of the United States on 18 February 1969. 5. On 23 May 1969, he received punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 16 to 17 May 1969. 6. Special Court-Martial Order 618, issued by Headquarters, Special Troops, Fort Dix, NJ, dated 17 March 1970, shows he was convicted of being AWOL from 24 October 1969 until 21 February 1970. He was sentenced to forfeit $58 per month for 3 months and restriction for 60 days. Only the portion of the sentence providing for forfeiture of pay was approved. 7. A Morning Report dated 9 May 1970 shows he was reported AWOL on 9 April 1970 and dropped from the rolls on 9 May 1970. 8. He accumulated 206 days of lost time. On 28 May 1970, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged the consequences he may endure, to include possible characterization of his service as under other than honorable conditions. 9. On 18 June 1970, the separation authority approved his request and directed he be furnished an Undesirable Discharge Certificate (i.e., under other than honorable conditions). 10. On 30 June 1970, he was discharged with service characterized as under conditions other than honorable. He completed 9 months and 19 days of net active service. 11. He submitted an application to the Army Discharge Review Board requesting his discharge be upgraded to honorable. On 3 June 1974, the Army Discharge Review Board notified him that his request had been denied. 12. On 7 January 2019, an Army Review Boards Agency psychologist provided an advisory opinion. The psychologist concluded that, based on thorough review of available medical records, there is a lack of evidence that he met the criteria for a board for medical or behavioral health condition during his military service. His misconduct appears to be best attributed to life/family stressors (AWOL of brother) and his lack of desire for military service. He demonstrated a disregard for rules by going AWOL on numerous occasions. The psychologist concluded that there is no evidence that a behavioral health condition mitigated the applicant’s misconduct and recommended no change to the characterization of his service. 13. The advisory opinion was provided to the applicant for review and comment. He did not respond. 14. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. An Undesirable Discharge Certificate was normally furnished to Soldiers discharged under this authority at the time. 15. This Board is to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions. 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. 16. In reaching its determination, the Board may also consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined no relief was warranted. The Board found no injustice or correction was warranted based upon the multiple offenses of AWOL and that no mitigating circumstances presented by the applicant warrantied changing the characterization of service. The Board found that the characterization of service given the applicant at the time of discharge appropriately described the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :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. ADMINISTRATIVE NOTES: not applicable. ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time, set 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharged because of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. Consideration should be given to the member’s potential for rehabilitation and his entire record should be reviewed prior to taking action. An Undesirable Discharge Certificate will normally be furnished. 3. 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 revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. 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 DRBs and 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. ABCMR Record of Proceedings (cont) AR20160013330 2 1