ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20160015698 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Partial separation packet * Special Court-Martial Orders Number 1445 * Statements of Support * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 states he feels his under other than honorable conditions discharge should be upgraded to general or honorable. He was going through enormous emotional distress at the time. He feels he was possibly suffering from post-traumatic stress disorder (PTSD), and that this was not taken into consideration at the time. This lead to an unjust discharge instead of treatment. 3. He provides: a. Self-authored statement wherein he chronicles his background, upbringing, and military service. He further describes his service in Vietnam and highlights his medals and decorations. He talks about the death of his mother and his fear of being killed, his usage of drugs and alcohol to escape reality, his civilian arrest for marijuana, and conviction by a special court-martial. He feels he had PTSD and that was not taken into consideration at the time. He claims he was denied treatment by the Department of a. Veterans Affairs (VA) because of the character of his discharge even though he exhibited all the symptoms of PTSD. After getting in trouble with the law, he was referred to a drug and alcohol program which gave me insight into his addiction and behavioral problems. He continues to remain drug free and he currently attends church. b. Several character reference letters from various individuals who describe him as a man of God who attends church regularly. Some talk about his emotional problems while others describe him as a kind and a respectful person. Some talk about his drug problems and his attempts to overcome his problems. 3. Review of the applicant's service records shows: a. He was inducted into the Army of the United States on 7 November 1967. He held an infantry specialty. b. He served in Vietnam from 26 April 1968 to on or about 12 August 1968. c. On 30 June 1968, in Vietnam, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for willfully disobeying lawful orders on three separate occasions. His punishment consisted of a forfeiture of pay and a suspended reduction to E-1. d. On 13 December 1968, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 24 August 1968 to 13 November 1968. The court sentenced him to reduction to the lowest enlisted grade of E-1 and a forfeiture of pay. The convening authority approved the sentence. e. On 21 March 1969, he was again convicted by a special court-martial of one specification of AWOL from 1 February 1969 to 3 March 1969. The court sentenced him to confinement at hard labor for 6 months and forfeiture of pay for 6 months. The convening authority approved the sentence on 25 March 1969. f. On 3 March 1969, he was convicted by civilian court (Court of Comanche County, OK) of the charge of possession of marijuana. The court sentenced him to confinement at the State Penitentiary for 2 years. g. On 6 May 1969, the applicant's immediate commander recommended the applicant for discharge in accordance with Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) due to conviction by civil authorities. h. On 6 May 1969, the applicant acknowledged receipt of the separation notification memorandum. He acknowledged he had been advised of the contemplated action to accomplish his separation for conviction by civil court. He waived consideration of his case by a board of officers or appearance before a board of officers. He further waived representation by military counsel and elected not to submit a statement on his own a. behalf. He acknowledged understood that, as a result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both, Federal and State laws, and that he may encounter substantial prejudice in civilian life. Finally, he indicated that he did not intend to appeal his civil conviction. i. The Post Stockade Chaplain wrote a statement indicating the applicant had a considerable amount of trouble since coming into the service and that his mother was ill. He opined that further rehabilitation efforts were in vain. j. On 6 May 1969, the immediate commander formally initiated separation action against the applicant. He indicated that in addition to the civil conviction, the applicant had had periods of AWOL and he was twice convicted by a special court-martial. His conviction was indicative of a pattern of frequent difficulty with the civil authorities, this military record was not exemplary, and his retention was neither practicable nor feasible. The intermediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate. k. On 23 May 1969, the separation authority approved the applicant's discharge under the provisions of AR 635-206. He ordered the applicant receive an Undesirable Discharge Certificate. l. The applicant was discharged on 6 June 1969. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-206 due to being convicted by civil court, and he was issued an Under Other Than Honorable Conditions Discharge Certificate. This form also shows he completed 1 year and 7 months of creditable active service and he had 218 days of lost time. m. There is no evidence the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-years statute of limitations. Likewise, there is no record of him having applied to this Boar for review or upgrade of his discharge. 5. The Army Review Board Agency's (ARBA) psychologist reviewed the applicant's service records for medical condition(s) not considered during the separation physical process. Specifically: * Does available record reasonably support PTSD, or another behavioral health condition, existed at the time of the applicant’s military service? * Did these conditions fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? * Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? * Any additional information deemed appropriate. * 6. The ARBA psychologist rendered an advisory opinion on 1 October 2019. The psychologist indicated that: a. It is more likely than not that [Applicant] was suffering from PTSD not Antisocial Disorder. However, PTSD was not identified as a diagnosis until the 1980s. His difficulty with authority figures and avoidance (AWOL) behaviors were likely the result of PTSD. b. In regard to the questions outlined above: (a) In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there is documentation to support the existence of a behavioral health condition at the time of discharge; (b) The available records indicate that the applicant did meet medical retention standards IAW AR 40-501; (c) PTSD is a mitigating factor in the misconduct that led to his discharge. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. By regulation, members convicted by domestic courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, may be retained in service. If the offense was indicative of an established pattern of frequent difficulty with the civil authorities, the member's military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation would be submitted. Members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. When a Soldier sis discharge with an under other than honorable conditions discharge, the separation authority would reduce the Soldier to the lowest enlisted grade of E-1. 8. 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.3. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was warranted. In reaching its determination, the Board considered the applicant’s petition, his service record, the frequency and nature of his misconduct, the reason for his separation and published DoD guidance for consideration of discharge upgrade requests. The Board considered the record of him being twice wounded in Vietnam, his award of the Purple Heart and the conclusion of the medical provider's review that the applicant was more likely than not suffering from PTSD and PTSD was mitigating for his misconduct. The Board members further considered the letters of reference provided by the applicant in support of a clemency determination. Based on a preponderance of evidence, the Board determined that clemency was warranted and voted to grant relief. 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 ending 6 June 1969 by changing his character of service to Under Honorable Conditions (General). 11/12/2019 X CHAIRPERSON Signed by: 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 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) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) then in effect, provided that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, would, as a general rule, be retained in service. If the offense was indicative of an established 5 pattern of frequent difficulty with the civil authorities, the member's military record was not exemplary, and retention was neither practicable nor feasible, a recommendation for separation would be submitted through the major command headquarters to the Adjutant General. Furthermore, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the policies and procedures for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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 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 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. 5. In view of the foregoing, 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 1. 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. 6. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 7. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD- related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing 1. evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. NOTHING FOLLOWS