ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  2 January 2020

	DOCKET NUMBER:  AR20160016409


APPLICANT REQUESTS: 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)

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 was told the upgrade would be automatic.

3.  Review of the applicant's service records shows: 

	a.  He was inducted into the Army of the United States on 18 March 1968.  He 
served in Vietnam from 20 August 1968 to 1 September 1969. 

	b.  He was honorably discharged on 29 January 1969, in Vietnam, for immediate 
reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer 
or Discharge) show he completed 10 months and 12 days of active service. 

	c.  He enlisted in the Regular Army on 30 January 1969.

	d.  On 2 April 1969, in Vietnam, he accepted nonjudicial punishment under Article 15 
for failing to be at his appointed place of duty, having on his possession a Government 
firearm at a time when he was not on official duty, and wrongfully visiting an off limits 
area.  His punishment included a suspended reduction to E-3. 

	e.  On 11 August 1971, also in Vietnam, his chain of command initiated a flag 
against him.  The DA Form 268 (Report of Suspension of Favorable Personnel Actions) 
show he was charged with possession of heroin. 
	f.  The complete facts and circumstances concerning the applicant's discharge are 
not available for review with this case.  However, his records contain:

		(1)  Special Orders Number 262 issued by Headquarters, XXrd X___ X___ 
(Americal), Vietnam on 19 September 1971 reducing him to private (PVT)/E-1 effective 
19 September 1971, due to being "approved for discharge from the service with an 
Undesirable Discharge Certificate." 

		(2)  Special Orders Number 262, issued by Headquarters, XXrd X___ X___ 
(Americal), Vietnam on 19 September 1971 reassigning him to the U.S. Army Transfer 
Station at Fort Lewis, WA, reporting on 23 September 1971, for separation processing, 
under chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

		(3)  Special Orders Number 267, issued by Headquarters, U.S. Army Personnel 
Center, Fort Lewis, on 24 September 1971, discharged the applicant from active duty 
under the provisions of AR 635-200, chapter 10 (for the good of the service, in lieu of 
trial by court-martial) with an under other than honorable conditions discharge. 

		(4)  His DD Form 214 showing he was discharged on 24 September 1971, under 
the provisions of AR 635-200, separation program number (SPN) 246 (chapter 10, in 
lieu of trial by court-martial).  His service was characterized as under other than 
honorable conditions and he was issued an Undesirable Discharge Certificate.  This 
form also shows he completed 2 years, 7 months, and 7 days of active service, and he 
had lost time from 12 July to 12 August 1970. 

	g.  There is no indication he petitioned the Army Discharge Review Board for an 
upgrade of his discharge within that board's 15-year statute of limitations.

4.  The Army Review Boards Agency medical advisor reviewed his case for evidence of 
a medical disability or condition, which would support a change in characterization of 
the discharge, and/or for evidence medical condition(s) warranting separation through 
medical channels.  The medical advisor rendered an advisory opinion on 2 December 
2019 and stated: 

	a.  There is no discharge examination available for review.  In-service treatment 
records included in the military paper chart do not show mental health concerns, nor do 
they show ongoing medical concerns.  Evidence is insufficient to determine that the 
applicant had PTSD (post-traumatic stress disorder) or other boardable behavioral 
health (BH) condition(s) at the time of the applicant’s military service.

	b.  The Department of Veterans Affairs (VA) records show the applicant is not 
service connected but is receiving care at the VA.  It is unknown if a BH condition was 
present at the time of misconduct. However, the applicant was diagnosed with chronic 
PTSD by a VA psychiatrist in September 2017.  Therefore, given the guidelines for 
liberal consideration, this applicant meets criteria for consideration of a discharge 
upgrade.
	c.  The available in-service treatment notes do not indicate the applicant had an 
ongoing medical condition requiring treatment.  The 1968 physical exam was normal, 
but too remote to be considered the discharge exam.  Since no military discharge 
examination is available for review, records are insufficient to determine whether the 
applicate met or failed medical retention standards in accordance with AR 40-501, for 
the medical conditions for which he is now being treated.

	d.  The reviewer is unable to determine if medical condition(s) were duly considered 
during separation processing since a medical discharge exam (nor proximate clinical 
records) is not available for review.  

5.  The applicant was provided with a copy of this advisory opinion to give him an 
opportunity to submit a rebuttal and/or additional comments.  The applicant did not 
respond. 

6.  By regulation (AR 635-200), a member who has committed an offense or offenses 
for which the authorized punishment includes a punitive discharge may, submit a 
request for discharge for the good of the service in lieu of trial by court-martial.  The 
request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt.  A discharge under other than honorable 
conditions is normally considered appropriate.

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.

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 found relief was warranted.  The Board determined that based upon the 
applicant’s combat service in Vietnam and his diagnosed PTSD from a medical 
professional, as well as the misconduct captured within the service record, the Board 
concluded that granting clemency by upgrading the characterization of service of the 
applicant to Under Honorable Conditions (General) was appropriate.





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 reissuing the applicant a 
DD Form 214 showing his characterization of service as Under Honorable Conditions 
(General).
	  
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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Chapter 10 of the regulation in effect at the time (and the version currently in 
effect) provides that a member who has committed an offense or offenses for which the 
authorized punishment includes a punitive discharge may, submit a request for 
discharge for the good of the service in lieu of trial by court-martial.  The request may be 
submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is 
authorized, a discharge under other than honorable conditions is normally considered 
appropriate.

	b.  Paragraph 3-7a of the regulation currently in effect 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.

	c.  Paragraph 3-7b of the regulation currently in effect 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.  

3.  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.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20160016409

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