ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20170000067 APPLICANT REQUESTS: an upgrade of his general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Review Boards Agency (ARBA) letter, dated 4 January 2017 * Department of Veterans Affairs (VA) letter, dated 1 August 2011 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: a. He developed psychological problems while serving in combat and was unable to cope with the stress. He was never offered treatment for his combat stress while serving in the military. b. After several years of dealing with this stress, he was able to get help at the Dorn VA Medical Center where he was diagnosed with post-traumatic stress disorder (PTSD) in 2009 and the VA determined it was service-connected. 3. The applicant enlisted in the Regular Army on 7 May 1971. 4. He was awarded military occupational specialty 11B (Light Weapons Infantryman) and served in Vietnam from 11 October 1971 through 27 April 1972. 5. On 7 March 1972, his immediate commander notified him of he was under consideration for discharge under the provisions of Army Regulation 635-212 (Unfitness and Unsuitability) for unsuitability and advised him of his rights. 6. A Mental Status Examination, dated 10 March 1972, shows: * the physician’s impression was the applicant had an immature personality but has no gross psychopathology * he did not have any significant military problems until reaching his present company, to which he was transferred at his request * he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on numerous occasions and described an inability to relate to company personnel * there was no apparent explanation for his current behavior other than adjustment reaction * he was found mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings * rehabilitation within the military would be practical * he met the psychiatric retention standards of Army Regulation 40-501 (Standards of Medical Fitness) * he was psychiatrically cleared for any action deemed appropriate by his command * his transfer to another unit was recommended 7. On 14 March 1972, his immediate commander requested the applicant’s discharge under the provisions of Army Regulation 635-212, for unsuitability, based on the following reasons: a. The applicant had proved himself to be a substandard Soldier and was transferred from another unit in the battalion to Company E, 1st Infantry Battalion, 7th Cavalry on 7 January 1972, for rehabilitative purposes. To date, the rehabilitation had been totally unsuccessful. b. Since his transfer to his current unit he received the following disciplinary actions: * NJP for failing to report to his appointed place of duty (guard formation) * Battalion level NJP for resisting apprehension, no travel authorization, being off-limits at Bien Hoa Air Force Base), wearing improper military uniform, and violating curfew * Battalion level NJP for missing numerous company formations c. The applicant requested initiation of this discharge action through the company first sergeant and stated he wants to be out of the Army and work for his father upon separation. It is felt by the company commander and first sergeant that his separation from the service would be in the best interest of the company and the U.S. Army d. The applicant was counseled on five occasions between 3 February 1972 and 7 March 1972, and received the following conduct and efficiency ratings: * May 1971 through August 1971, Conduct: Excellent; Efficiency: Excellent * August 1971 through 9 January 1972, Conduct: Unsatisfactory; Efficiency: Unsatisfactory * 10 January 1972 through Present, Conduct: Unsatisfactory; Efficiency: Unsatisfactory e. As his presence in his current unit was an unsuccessful rehabilitative attempt, all courses of action from counselling, to grade reduction and monetary fine through NJP were taken to no avail. He exhausted all possible corrective procedures and his discharge was recommended. 8. On 20 April 1972, he acknowledged being advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of Army Regulation 635-212. He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel. He did not submit statements in his own behalf and acknowledged he may expect to encounter substantial prejudice in civilian life in the event he were issued a general discharge under honorable conditions and may be ineligible for many or all benefits. 9. On 24 April 1972, the officer exercising general court-martial convening authority approved the applicant’s discharge under the provisions of Army Regulation 635-212. The requirements for counseling and rehabilitation were waived as further duty of the applicant could create serious disciplinary problems. The issuance of a General Discharge Certificate was directed. 10. He was discharged accordingly on 1 May 1972, under the provisions of Army Regulation 635-212 for unsuitability after 11 months and 25 days of net active service this period. His service was characterized as general, under honorable conditions. 11. The applicant provided a VA letter, dated 1 August 2011, which states he was granted a service-connected disability rating of 30 percent for PTSD effective 4 August 2010. 12. On 26 March 2019, the ARBA psychiatrist provided an advisory opinion wherein she stated: a. A review of the applicant’s electronic VA medical record indicates he has a 100 percent service-connected disability rating from the VA, with a 50 percent service connected disability rating for PTSD. His problem list includes major depressive disorder, PTSD, cocaine dependence and abuse (in remission), and alcohol abuse (in remission). b. Although his military record lacks documentation of any PTSD symptoms, this fact does not necessarily mean he did not have PTSD while on active duty as in the era of his service PTSD symptoms were frequently not recognized. The presence of PTSD can be inferred from indicators, such as receiving excellent conduct and efficiency ratings prior to his service in Vietnam then decreasing significantly after his Vietnam service. c. Based on the available information, it is the opinion of the ARBA psychiatrist the applicant has a mitigating behavioral health condition of PTSD, as PTSD is associated with avoidant behaviors, difficulty with authority figures and oppositionality, there is a nexus between the misconduct that led to his discharge and his PTSD. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 1 April 2019, and given an opportunity to submit comments, but he failed to respond. 14. 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, 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. 15. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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. 16. Army Regulation 635-212 (Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel found to be unfit or unsuitability for further military service. a. Action will be taken to separate an individual for unsuitability when it is clearly established that: * it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and * he meets retention medical standards b. An individual is subject to separation under the provisions of this regulation for unsuitability when one or more of the following conditions exists: * inaptitude * character and behavior disorders * apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, where individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses * alcoholism * homosexuality c. Counseling and rehabilitation may be waived by the convening authority when separation is being considered and he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or the individual. An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, the evidence in the record, the advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the applicant’s service in Vietnam, the nature of his misconduct, his PTSD diagnosis and the conclusions of the advising official and determined that liberal consideration applied in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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 Honorable for the period of service ending 1 May 1972. 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. 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, 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. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-212 (Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel found to be unfit or unsuitability for further military service. a. Action will be taken to separate an individual for unsuitability when it is clearly established that: * it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and * he meets retention medical standards b. An individual is subject to separation under the provisions of this chapter for unsuitability when one or more of the following conditions exists: * inaptitude * character and behavior disorders * apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, where individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses * alcoholism * homosexuality c. Counseling and rehabilitation may be waived by the convening authority when separation is being considered and he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or the individual. d. An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. The type of discharge will be directed by the convening authority. ABCMR Record of Proceedings (cont) AR20170000067 7 1