ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20160016401 APPLICANT REQUESTS: reconsideration of his request to upgrade of undesirable discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007885 on 20 November 2012. 2. The applicant states: a. He was truthful in his letters; however, his drug problem has not been addressed. He was third in his class and was promoted. Instead of getting to do what he trained to do or just being a door gunner, his first and only job was guard duty with people he felt did not care for the Army. Since his last letter, he got in contact with a couple of people he was close to. They too were a little shocked to see what kind of jobs they ended up with. He had fights because he did not want to get involved with drugs. He tried to talk to a young captain, but he did not want to listen. b. He got transferred and a friend named Holman asked to go with him. They had a layover in Plaku and it was the worst experience of his life. Empty heroin vials were laying everywhere on the ground. He tripped over a dead guy on the floor. They were robbed and they had to go to a hearing to testify. He and Holman spent most of their time together and he knows his statements are true. A guy toss a grenade at him after they testified against their friends. c. He only ended up on drugs at gun point and threats. When they were drug tested, those doing drugs brought or got clean urine from someone else in order to past the test. He wanted and asked for help. He was sent to Fort Knox without help. No one really wanted to hear how serious things were with him. He felt he was going crazy and had to leave in order to get help. Every time and everywhere he went, he was told to go back and let the Army fix you. d. At Fort Riley, it was said there was not a racial problem nor was there a big brawl the day before he signed his bad discharge papers. At meal time a black guy would stand by the door to the mess hall while everyone got in line. When the door opened, black guys would come out of the barracks and other places. No one went inside until all the blacks were inside. He felt like he was back in Vietnam with some seriously dangerous people. e. In today’s Army he is sure he would have fulfilled his dream of becoming a warrant officer. He has tried to block the Army out. He must have post-traumatic stress disorder (PTSD) and he knows Agent Orange is killing him. He did not want to talk to the Governor, Senator, or go to the newspaper for help. He did not want to embarrass himself, but he knows he was right. A couple of years in the Army ruined 40 years of his life. 3. His DA Form 20 (Enlisted Qualification Record) shows he served more than 10 months in the Republic of Vietnam. This form further shows he was absent without leave (AWOL) on two occasions for periods of 4 and 64 days with 37 days of confinement. 4. He accepted nonjudicial punishment on 23 December 1971, while in Vietnam, for violating a general order. 5. On 21 March 1973, he was convicted by a special court-martial of the following offenses: * being AWOL from on or about 30 October 1972 to on or about 2 January 1973 * going from his appointed place of duty without authority * willfully disobeying a lawful order 6. His complete discharge packet is not contained in his records. However, on 18 May 1973, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, with a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities), with issuance of a DD Form 258A (Undesirable Discharge Certificate). He completed 1 year, 10 months, and 15 days of total active service with 102 days of time lost. 7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. On 28 February 2019, the ABCMR obtained an advisory opinion from a Psychologist with Army Review Boards Agency (ARBA), who states In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military medical records do support the existence of PTSD at the time of discharge. The applicant's medical records indicate that the applicant did meet medical retention standards IAW AR 40-501 (Standards of Medical Fitness). The applicant's diagnosis of PTSD is a mitigating factor in the misconduct that resulted in the applicant's discharge from the military. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. On 7 March 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit for further military service. It provided for the separation of individuals for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities 11. In reaching its determination, the Board can consider the applicant's petition, his statements, and the medical advisory, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed there were mitigating factors to the misconduct leading to the discharged. The Board recommends an under honorable conditions characterization of service. 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 amendment of the ABCMR's decision in Docket Number AR20120007885 on 20 November 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 18 May 1973 showing his characterization of service as 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit for further military service. It provided for the separation of individuals for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally given. b. 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. 2. 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 UOTHC 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. 3. 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 (TBI); 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016401 3 1