ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20160013715 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to an honorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 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 states he believes his combat experience in Vietnam and his subsequent self-medication helped him deal with his undiagnosed post-traumatic stress disorder (PTSD). This led to his bad behavior and eventual under other than honorable conditions discharge. Under the new guidelines he respectfully requests an upgrade to honorable. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 22 March 1965. b. On 1 September 1965, he was convicted by a special court martial for being absent without leave (AWOL) from 6 July 1965 to 20 July 1965. The court sentenced him to confinement at hard labor for 6 months and forfeiture of 25.00 pay per month for 4 months. The convening authority approved the sentence on 8 September 1965. c. He served in Vietnam from 19 April 1966 to 18 April 1967. In Vietnam, he accepted nonjudicial punishment (NJP) on/for: * 10 December 1966 for sleeping at his post * 13 July 1967 for being AWOL from 3 July 1967 to 8 July 1967 * d. On 23 February 1968, at Fort Knox, KY, he was convicted by a special court martial for being AWOL from 5 January 1968 to 13 January 1968 and from 19 January 1968 to 29 January 1968. The court sentenced him to be confined at hard labor for 4 months and forfeit 64.00 pay per month for 4 months. The convening authority approved his sentence on 28 February 1968. e. The complete facts and circumstances surrounding the applicant’s discharge are not available to review. However, his service record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 22 February 1968 with an under other than honorable conditions characterization of service. This DD Form 214 further shows; * the authority for separation is Army Regulation 635-212 (Personnel Separations – Discharge-Unfitness and Unsuitability) * the Separation Program Number 28B (Unfitness) * he completed 2 years, 2 months, and 18 days of active service with 283 days of lost time * he was awarded or authorized the: * National Defense Service medal * Vietnam Service medal * Vietnam Campaign Medal * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Pistol Bar f. On 11 January, 1977, the Army Discharge Review Board reviewed his discharge and determined that he was properly discharged. His request for a change in the type and nature of his discharge was denied. 4. In the processing of this case, the Army Review Boards Agency psychologist reviewed the applicant's case and rendered an advisory opinion on 6 February 2019. The psychologist opined: a. Based on a thorough review of available medical records, there is a lack of information to determine if a mental disorder existed during his period of service. Certain behavioral health conditions can be associated with avoidance behaviors (unauthorized absence), risk taking, and impulsivity; however, in this case there is a lack of supportive documentation from military in service medical records and post- service, to support the diagnosis of PTSD stemming from deployment experiences or another behavioral health condition b. The report of medical examination, dated 20 February 1968 indicated the applicant met medical retention standards in accordance with AR 635-212 and was medically cleared for separation. a. c. The applicant does not have a service-connected disability rating from the Department of Veterans Affairs and he did not provide any in-service or post-service medical records to support a diagnosis of PTSD. 5. On 15 February 2019, the applicant was provided with a copy of the medical advisory opinion in order to provide a response. He did not respond. 6. By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. An individual is subject to separation when frequent incidents of a discreditable nature with civil or military authorities exists. 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 DOD guidance. 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 that relief was not warranted. Based upon the short term of service completed prior to a pattern of misconduct and the medical advisory’s finding that there is a lack of information to determine if a mental disorder existed during his period of service, the Board concluded there was insufficient evidence to provide justification in making a change to the characterization of service of the applicant. For that reason, the Board recommended denying the applicant’s request for relief. 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. 1535874 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, 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) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, sets forth the basic authority for the separation of enlisted personnel based on unfitness or unsuitability. It states action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort is unlikely to succeed. An individual is subject to separation when frequent incidents of a discreditable nature with civil or military authorities exists. 3. AR 635-200 (Active Duty Enlisted Separations) governs the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) 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. 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 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. 5. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in 1. whole or in part to 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 that misconduct which led to the discharge. 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 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. 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.