ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160015141 APPLICANT REQUESTS: his under other than honorable discharge be upgraded to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Letter to Applicant FACTS: 1. The applicant did not file within the 3 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 was a good Soldier and served in the Republic of Vietnam fighting for our country. It was the war that drove him crazy with post- traumatic stress disorder. Based on the stress he got involved with alcohol and went absent without leave (AWOL) for 211 days. He is sorry for his misconduct, but knows he cannot change the past. He is seeking a discharge upgrade so he can receive VA health care and pension benefits. He only receives $200 from the Social Security Administration. 3. The applicant was inducted into the Army of the United States on 10 April 1968. 4. He served in the Republic of Vietnam from 18 September 1968 to 6 September 1969 as an infantryman with Company D, 2nd Battalion, 502nd Infantry Regiment. A review of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to sergeant/pay grade E-5 on 9 August 1969. In addition, it shows he received or earned the following awards with the award orders filed in the applicant's personnel record. * Combat Infantryman Badge by Special Orders Number 68 issued by Headquarters (HQ), 101st Airmobile Division * Army Commendation Medal by General Orders (GO) Number 3175 issued by HQ, 101st Airmobile Division * Bronze Star Medal by GO Number 8632 issued by HQ, 101st Airmobile Division 5. Within his personnel record is a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) showing he accepted nonjudicial punishment (NJP) on 9 December 1969 while stationed at Fort Benning, Georgia for being AWOL from 10 November 1969 to 1 December 1969. His punishment included reduction to specialist four (SP4)/pay grade E-4, extra duty and forfeiture of pay for 2 months. 6. During a special court-martial on 10 February 1971, the applicant was found guilty of two specifications of being AWOL from Fort McPherson, Georgia from on or about 27 February 1970 to 24 September 1970. The second specification of AWOL from the Special Processing Detachment, Fort McPherson, Georgia was from 15 November 1970 to 27 December 1970. His punishment included hard labor for 2 months, forfeiture of $95.00 pay per month for 2 months and reduction to the grade of private/PV1. He was sentenced by a judge. The court- martial convening authority approved the sentence the same day. 7. On or about 6 April 1971, the applicant departed in an AWOL status. He returned to the control of military authorities on or about 23 May 1971. 8. The applicant's company commander penned a letter to the battalion commanding officer on 19 April 1971, wherein he stated there was no evidence of domestic strife, indebtedness, and trouble with his superiors which might have led to his being AWOL. He further stated there was no record of any evidence or indication to suspect foul play or mental instability which may have caused him to go AWOL. 9. Subsequent to his return to duty on 23 May 1971, his commanding officer preferred court-martial charges against him for one specifications of being AWOL. Within his record there is a statement by his commanding officer attesting to his AWOL period from the Personnel Control Facility at Fort Gordon, Georgia from on or about 6 April to on or about 23 May 1971. 10. On 2 June 1971 the applicant consulted with counsel (a Judge Advocate General’s Corps officer). He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He elected not to submit statements in his own behalf and acknowledged/understood: * he had not been subjected to any coercion whatsoever by any person * if his discharge request was accepted, he could be discharged under other than honorable conditions (UOTHC) and issued an Undesirable Discharge Certificate * as a result of the issuance of a UOTHC characterization of service he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life 11. In the process of separating from the Regular Army, the applicant underwent a separation medical examination in compliance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He had a normal examination with no limitations noted by the physician. He had a PUHLES of 1 1 1 1 1 1 with no restrictions. [A physical profile, as reflected on a DA Form 3349 (Physical Profile), is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.] 12. On 2 July 1970, the separation authority approved the applicant's request for discharge, directed reduction in grade to private (PV1)/E-1, as well as the issuance of an Undesirable Discharge Certificate. He further stated the reason and authority for discharge would be entered in item 11c of the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show "For the good of the service, SPN [Separation Program Number] 246." 13. On 23 July 1971, he was discharged accordingly. His DD Form 214 shows he was discharged under other than honorable conditions. He completed 1 year, 11 months and 20 days of net active creditable service. His rank/grade was PV1/E-1 and his date of rank was 10 February 1971. The reason and authority was Chapter 10, Army Regulation 635-200. The Separation Program Number is shown as "246" [Discharge for the good of the service]. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows only the Expert Marksmanship Qualification Badge with Rifle Bar. 14. There is no evidence the applicant applied to the Army Discharge Review Board within its statutory limitations. 15. In the processing of this case, the staff of the Army Review Boards Agency mailed the applicant a letter requesting he provide medical evidence to support his PTSD claim and how the PSTD might have mitigated his conduct. The applicant did not respond. 16. In support of his application the applicant provided a letter from the VA dated 1 June 2016, wherein the VA denied his claim for pension benefits based on his cumulative period of AWOL for 211 consecutive days from 25 February 1970 to 24 September 1970. 17. On 9 October 2018, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. Nor is there available evidence supporting a change to his narrative reason for separation or his SPD code. A review of the VA Joint Legacy Viewer failed to reveal any records pertaining to the applicant. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant was provided a copy of the medical advisory on 11 October 2008. He did not respond. 19. 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 post- traumatic stress criteria (PTSD), detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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 applicants' service. 20. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 NOTE(S): 1. Orders found in the applicant’s military personnel record or authorized by regulation awarded him the Combat Infantryman Badge, the Army Commendation Medal, the Bronze Star Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Republic of Vietnam Campaign Medal with Device (1960). Thus it would be appropriate to add these medals to his 1971 DD Form 214. 2. By regulation service medals are added to a record based on service in a designated combat or hostile area. The applicant did serve in the Republic of Vietnam during four named campaigns; therefore, he is entitled to the Vietnam Service Medal with four bronze service stars to be added to his 1971 DD Form 214. REFERENCES: 1. Title 10, USC, 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 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated 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. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 3. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPD "246" was the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 4. Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a physical evaluation board (PEB) as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The PEB will make the determination of fitness or unfitness and then based on law a Soldier will be medically separated or medically retired. 5. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Amy policy, criteria, and administrative instructions concerning individual and unit military awards. a. The Vietnam Service Medical is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. This same regulation states a bronze service star is authorized with the Vietnam Service Medal award for each Vietnam campaign a member is credited with participating in. Appendix B shows that during the applicant's service in Vietnam, he participated in the following four campaigns: * Vietnamese Counteroffensive Phase V (1 July - l November 1968) * Vietnamese Counteroffensive Phase VI (2 November 1968 – 22 February 1969) * Tet 69/Counteroffensive (23 February - 8 June 1969) * Vietnam Summer - Fall 1969 (9 June - 31 October 1969) b. Awards made by the President, the Secretary of Defense, and the Secretary of the Army are announced in Department of the Army general orders (DAGO). Awards of decorations and the Army Good Conduct Medal will be announced in permanent orders by the appropriate awards approval authority. Service medals and ribbons are administratively awarded to individuals who meet the qualifying criteria. c. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. 6. Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. 7. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. This regulation states for item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) to enter all awards for all periods of service. Check the Soldier's records for validity of awards. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015141 2 1