ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20160015178 APPLICANT REQUESTS: in effect, his under other than honorable conditions characterization of service be upgraded to a general, under honorable conditions characterization of service. 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 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, in effect, his characterization of service is an injustice that was caused by a finance company who stated he was behind with his car payments. He states he took care of his problem (debt) and there is nothing reflecting this debt on his credit report. His states his commanding officer didn’t like the harassment he received from the finance company and told him so. He did serve honorably for 3 years. He now suffers from a lot of presumed illnesses associated with Agent Orange exposure and is unable to receive medical treatment at a Department of Veterans Affairs hospital. 3. The applicant was inducted into the Army of the United States on 20 September 1966. He was discharged on 25 September 1966 to immediately enlist in the Regular Army on 26 September 1966. There is a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service filed in his military personnel record. 4. From a review of his military personnel record, a second DD Form 214 for his period of service from 26 September 1966 to on or about 1 July 1969 was not found. Within this time period on 23 October 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully appropriating a military vehicle and for being absent without leave (AWOL) from 12 October 1968 to 17 October 1968. At the time he was stationed in South Korea. His punishment consisted of reduction to private first class/pay grade E-3 which was suspended until 1 January 1969. 5. He reenlisted on 2 July 1969. A review of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 11 September 1970 to 3 July 1971. 6. On 11 December 1972, the applicant in the rank of sergeant/E-5 accepted nonjudical punishment for failing to prepare a vehicle for inspection. His punishment was extra duty for 14 days. 7. On 28 February 1973, Mr. Xxxx Xrxxx wrote a letter to the Fort Carson Post Commander informing him he had contacted the applicant’s commander, but without result, concerning the applicant’s indebtedness and unwillingness to cooperate with him. The complainant stated the applicant had written worthless checks to King Scooper that were more than a year old. During the past year the applicant had not made restitution on the debts. It was their intent to file legal action or a criminal complaint against the applicant. He concluded his letter by asking for the post commander’s assistance. 8. A review of his military personnel record shows the applicant had a history of not meeting his financial obligations. On 17 March 1973, the applicant’s company commander initiated a letter through the chain of command to the commanding general outlining the applicant’s indebtedness. He stated the applicant had a history of indebtedness and was incapable of maintaining his finances. The company commander stated he had received multiple letters of indebtedness from various sources concerning the applicant. A brief summary follows – * Tower TV, Inc., for rent in the amount of $55.00 * Kwik Way Store Number 14 for worthless checks totaling $40.00 * General Finance Corporation for a loan in the amount of $1,016.00 with a balance of $1,798.31 * Army and Air Force Exchange Service dishonored checks * Community Management Association, a debt collection service for debts totaling $99.30 * Pay-Center, Inc., debt collection service 9. There are a series of memorandums for record prepared by the unit executive officer showing the applicant was counselled as follows on: * 17 April 1973, writing a worthless check on a closed account to Sears in the amount of $15.00 * 17 April 1973, his bank account at Citadel Bank was $25.85 overdrawn * 18 April 1973, writing a worthless check to Phil Long Ford in the amount of $239.00 for a down payment on a Ford Bronco, that would be reposed and a claim filed with the local district attorney’s office * 20 April 1973, $2,000 debt to the federal government 10. On 9 April 1973, his company commander received notification from The American Sportsman’s Club that the applicant had provided them with a worthless check in the amount of $60.00. 11. On 23 April 1973, his company commander received notification from the Universal Insurance Agency that the applicant had written a worthless check on 6 December 1972 and had yet to make restitution. 12. On 10 May 1973, the applicant underwent a mental status examination by a psychiatrist who prepared DA Form 3822 (Report of Mental Status Evaluation). The psychiatrist indicated the applicant’s behavior was normal, he was fully alert and fully oriented. His mood was level, thinking process was clear, and memory was good. His thought content was also normal. He concluded by indicating the applicant had no psychiatric disease, that he had the mental capacity to understand and participate in separation board proceedings and he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness). 13. The complete facts and circumstances surrounding his discharge are not in his available records for review. Special Orders Number 178 issued by Headquarters, Fort Carson and Headquarters, 4th Infantry Division on 27 June 1973 shows the applicant was discharged effective 27 June 1973 for unfitness with issuance of an Undesirable Discharge Certificate. 14. His DD Form 214 shows: * he was discharged on 27 June 1973, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations) * he completed 6 years, 9 months, and 8 days of net active service * his service was characterized as under other than honorable conditions * he was furnished a DD Form 258A (Undesirable Discharge Certificate) * among his awards is the Vietnam Service Medal with two bronze service stars 15. There is no evidence the applicant applied to the Army Discharge Review Board (DRB) for an upgrade of his discharge within its 15-year statute of limitations. 16. 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 post-traumatic stress disorder, 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. 17. On 4 May 2018, the Army Review Boards Agency (ARBA) sent the applicant a letter requesting he provide a copy of his military medical records and any other medical documents he had to support his application concerning his health related illness(es) from his service in the Republic of Vietnam. He did not respond. 18. 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. 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. 19. In the adjudication of this case an advisory opinion was obtained from the Army Review Boards Agency senior medical advisor on 19 March 2019, which states: a. The available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition existed at the time of the applicant’s military service. It is unknown whether there were any mitigating behavioral health conditions present at the time of misconduct. b. There is no indication the applicant failed medical retention standards in accordance with Army Regulation 40-501 warranting a separation through medical channels. He presumably met medical retention standards for physical, medical, dental and/or behavioral conditions that were applicable to his era of service. c. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. On 20 March 2019, ARBA sent the applicant a letter with a copy of the medical advisory opinion for his review and rebuttal. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the applicant’s overall service record, to include service in Vietnam, the frequency and nature of his misconduct (primarily indebtedness), the conclusion of the advising official and whether to apply clemency. The Board determined that there were mitigating factors to consider and based on clemency guidance and upgrade to his character of service was warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 amending his DD Form 214 for the period of service ending 27 June 1973 to show his Character of Service as General, under honorable conditions. 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. 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 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, an established pattern of shirking, failure to pay just debts and failure to support dependents. When separation for unfitness was warranted an Undesirable Discharge Certificate was normally considered appropriate. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160015178 7 1