ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 June 2019 DOCKET NUMBER: AR20160016487 APPLICANT REQUESTS: his general, under honorable conditions discharge (GD) be upgraded to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * documents from Service 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 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 turned down for insurance because he has a GD. He’s being ostracized by an insurance company connected to the military. He was drafted into the military and completed initial entry training without any problems. He was sent to Vietnam in July 1970. He eventually discovered he could not adjust to military life. He went to see a psychiatrist in order to seek help at the military’s request; however, it did not help. He wanted to be released from the military. He was rebellious, but he continued to perform his duties as a Soldier. He was given a hearing before a board of officers and it was determined he should be discharged and given a GD after his 1 year tour in Vietnam. He knows USAA offers affordable rates for veterans; however, he can’t be insured due to his discharge. Vietnam veterans were shot at, bombed, sprayed with Agent Orange, spit on, and cursed due to the unpopularity of the Vietnam War. 3. The applicant served in Vietnam from 22 July 1969 to 21 July 1970. 4. The applicant accepted non-judicial punishment on the following occasions: * 26 January 1970, for failing to go to his appointed place of duty * 12 February 1970, for resisting apprehension, being disorderly while in uniform, and being absent without authority * 7 April 1970, wrongfully possessing marijuana * 9 May 1970, wrongfully appropriating government property * 5 June 1970, wrongfully possessing marijuana 5. On 28 April 1970, the applicant’s commander recommended he be required to appear before a board of officers to determine whether he should be discharged under the provisions of Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability). 6. On 22 June 1970, the applicant appeared with counsel before a board of officers. The board found the applicant was unfit for further retention in the military service because of use of narcotics and habitual shirking of his military duties. The board recommended the applicant be discharged from the service because of unfitness with issuance of a GD. 7. On 19 July 1970, the approval authority approved the applicant’s discharge for unfitness under Army Regulation 635-212. He directed the applicant receive a GD Certificate. 8. On 26 July 1970, the applicant was discharged in accordance with the approval authority’s decision. His DD Form shows he completed 1 year, 4 months and 20 days of net service this period. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Vietnam Campaign Medal. 9. There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 10. On 12 March 2019, the ABCMR obtained an advisory opinion from a Clinical Psychologist/Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, after reviewing the currently available documentation and , in accordance with the 3 September 2014 Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder, it is the opinion of the Agency psychiatrist that there is insufficient evidence at this time to support that the applicant's misconduct was due to psychological problems he experienced while deployed to Vietnam. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 15 March 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 12. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 13. In reaching its determination, the Board can consider the applicant's petition, his statements, and medical/service documents, 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 relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. 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. He did not provide letters of support nor evidence of post-service achievement for the Board’s consideration. 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): 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 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. a. 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. 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 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. 4. 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. 5. 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) AR20160016487 0 5 1