ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20160016505


APPLICANT REQUESTS:  Upgrade of his under conditions other than honorable discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* military service medical records (38 pages)
* Colorado Public Employees' Retirement Association (PERA) verification of retirement income letter
* Macomb Community College Climate Control Technology Certificates (Refrigeration/Air Conditioning/Heating)

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.  In a VA Form 21-4138, the applicant narrates his negative experiences during his service in Vietnam and points out his post-service accomplishments.  He also contends, in effect, that he was suffering from behavioral and physical health issues during military service which contributed to the misconduct that led to his discharge.

3.  The applicant enlisted in the Regular Army on 26 June 1969.  He was awarded military occupational specialty 64B (Heavy Vehicle Driver).  His DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 4 May 1969.  

4.  The applicant's records show he departed absent without leave (AWOL) on 26 June 1970 and remained AWOL until he surrendered to military authorities on 24 March 1974.  He was serving in the rank and grade of specialist four/E-4 at the time of his unauthorized absence.  

5.  On 28 March 1974, court-martial charges were preferred against the applicant based on his AWOL offense.  

6.  On 28 March 1974, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

7.  In doing so, he acknowledged the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:
* he had not been subjected to coercion with respect to his request for discharge
* he had been advised of the implications that were attached to the discharge
* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA 
* he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

8.  The applicant's chain of command recommended approval of his request for discharge and on 3 April 1974, the separation authority approved his request and directed the issuance of an Undesirable Discharge Certificate and his reduction to the rank and grade of private/E-1.  

9.  The applicant's DD Form 214 confirms he was discharged on 8 April 1974 under the provisions of Army Regulation 635-200, chapter 10, in the rank of private/E-1, with his service characterized as under conditions other than honorable.

10.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 17 August 1982.  

11.  On 6 March 2019, the Army Review Boards Agency medical advisor provided an advisory opinion.  The advisory found the available documentation showed sufficient evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case.  Based on the information available for review, there is sufficient data to determine the applicant did have a mitigating medical or behavioral health condition(s) for the offenses which led to his administrative separation from the Army.  It appears that he had symptoms consistent with post-traumatic stress disorder (PTSD) which were not diagnosed at that time.  One clinical criteria of the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition, for PTSD is avoidant symptoms.  This refers to avoidance of trauma-related stimuli after the trauma, in the following way(s):  1) trauma-related thoughts or feelings, and 
2) trauma-related external reminders.  As these relate to the applicant, once he went AWOL, the avoidant symptoms reinforced his decision not to return to Vietnam.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

12.  The applicant was provided a copy of the advisory opinion on 20 March 2019 and given an opportunity to submit comments.  He did not respond.

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 determined that relief was warranted.  Based upon the type of misconduct and the medical advisory’s finding that the available documentation showed sufficient evidence of a medical disability or condition that would support a change to the character, the Board concluded that upgrading the applicant’s characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X:	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, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.

	c.  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.

2.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records 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 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.

ABCMR Record of Proceedings (cont)	 AR20160016505


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