IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20170000204 APPLICANT REQUESTS: correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 15 September 1971 to show he received a general, under honorable conditions discharge or an honorable discharge vice an under other than honorable conditions (UOTHC) characterization of service (undesirable discharge). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Applicant’s Lansing Psychological Associates Medical Records dated 10 May 2019 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 AC92-06269 on 12 August 1992. 2. The applicant states, in effect, that he is a Vietnam War Veteran suffering from post- traumatic stress disorder. He states under the new guidance for correcting military records, his record should be reviewed and favorably considered. Through his Member of Congress he states that at the time of his service he did not understand PTSD and its effect on him. He knew he had problems and he did not receive treatment for his problems. His problems impacted his duty performance. In 1972 he was diagnosed with skin cancer, basal cell and squamous cell, and he still undergoes treatments for his cancer. 3. The applicant entered the Regular Army on 12 April 1969. He completed his training and was awarded military occupational specialty 51A (Utilities Worker). He served in United States Army Europe. 4. On 13 May 1969 the applicant was honorably discharged and immediately reenlisted the next day (14 May 1969). He received a DD Form 214 for his first enlistment period documenting he completed 1 year, 1 month and 2 days of honorable service. 5. A DA Form 3286-8 (Statements for Enlistment) and its associated DD Form 4 (Enlistment Contract – Armed Forces of the United States) filed in the applicant’s personnel record shows he reenlisted in the Regular Army on 14 May 1969 for an overseas assignment to the Republic of Vietnam. 6. He arrived in the Republic of Vietnam on or about 29 July 1969. He was assigned to the 19th Engineer Battalion (Combat). 7. On 20 November 1969 he accepted punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failure to obey a lawful order by violating a United State Army Vietnam regulation when he was found violating curfew restrictions on 2 November 1969. Secondly, for being absent without leave (AWOL) from 5 November to 17 November 1969. His punishment included reduction to private (PVT)/pay grade E-1, forfeiture of $65.00 and to perform extra duty for 30 days. 8. During a special court-martial held at Headquarters, 19th Engineer Battalion (Combat), the applicant plead guilty and was found guilty of violating a lawful order (regulation) by visiting an off limits area of Cam Ranh Village on 6 December 1969 and for failure to repair (missing formation) on 20 December 1969. His sentence was adjudged on 29 January 1970 and his punishment included confinement at hard labor for 4 months, forfeiture of $80 per month for 4 months, and reduction to PVT/E-1. 9. On 5 February 1970 the special court-martial convening authority approved the court-martial sentence in part: he adjudged the confinement to hard labor for 30 days and suspended the remaining confinement for 3 months. The applicant was ordered to confinement at the U.S. Army Vietnam Installation Stockade. Also on 5 February 1970 Special Court-Martial Order Number 12 was issued documenting the court-martial, its adjudged sentence and its approved sentence. 10. On 7 July 1970 the applicant accepted punishment under the provisions of Article 15, UCMJ for failure to go to his appointed place of duty on two separate dates. His punishment was forfeiture of $40 per month for 1 month. 11. On or about 9 August 1969 the applicant departed the Republic of Vietnam and was reassigned to Fort Stewart, Georgia. His initial assignment was to Company C, 575th Engineer Battalion (Construction) and then he was reassigned to 24th Ordnance Company (Ammunition). 12. While stationed at Fort Stewart, Georgia the applicant accepted punishments under the provisions of Article 15, UCMJ for the following offenses: * on 18 February 1971, for violating a uniform regulation * on 3 March 1971, for two specifications of AWOL from place of duty or company area * on 2 June 1971, for failure to repair * on 13 August 1971 (after court-martial charges were preferred) for AWOL on 11 August 1971 13. On 9 August 1971 his commanding officer preferred court-martial charges against him for five specifications of being AWOL or failure to go for the following periods/dates: * AWOL from 2 July to on or about 19 July 1971 * AWOL from 23 July to on or about 27 July 1971 * failure to go on 27 July 1971 * failure to go on 29 July 1971 * AWOL from 2 August to on or about 6 August 1971 14. On 17 August 1971 the applicant underwent a psychiatric evaluation by a medical doctor and the written assessment was prepared on 19 August 1971. The applicant received a diagnosis of situational adjustment disorder. Upon completing his assessment, the medical doctor stated the applicant met the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. a. The medical doctor noted the applicant’s history of short periods of AWOL, failure to go and other minor violations of the UCMJ. He stated the applicant was recently married and appeared to be having marital problems. He opined the applicant missed formations or was AWOL (while stationed at Fort Stewart) due to martial problems. b. His father died when he was 11 years old and he was raised by his mother. The applicant did not complete high school due to family problems, but he did complete his General Education Degree while in the U.S. Army. c. During the interview the applicant was cooperative and responded appropriately to questions. Affect was appropriate; intellectual functioning within normal limits; no evidence of any thought disorder; no memory impairment; no significant anxiety, but he did appear mildly depressed. No evidence of any psychotic disorder. The applicant was and is mentally responsible, able to distinguish right from wrong and to adhere to the right, and has the mental capacity to understand and participate in board proceedings. 15. On 31 August 1971, the applicant’s commander recommended him for discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge- Unfitness and Unsuitability), paragraph 6a(1) for unfitness because of frequent incidents of discreditable nature with military authorities. His commander recommended issuance of an Undesirable Discharge Certificate. In his recommendation he restated the applicant’s disciplinary history. He also stated the applicant received a rehabilitative transfer to his unit and was directly supervised by a chief warrant officer two (CW2) and a staff sergeant who had counselled the applicant on numerous occasions. After their repeated counseling’s, the applicant did not improve his conduct, efficiency or behavior. Concurrently, the commander advised the applicant he was recommending him for elimination and advised him of his rights. The applicant acknowledged receipt of his separation recommendation. 16. On 3 September 1971, the applicant consulted with counsel (a Judge Advocate General’s Corps officer). He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. His court-martial charges were preferred on 9 August 1971. Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Enlisted Personnel – Enlisted Separations). * he had not been subjected to any coercion whatsoever by any person * if his discharge request was accepted, he could be discharged UOTHC and furnished an Undesirable Discharge Certificate * as a result of the issuance of and Undesirable Discharge Certificate he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement on his own behalf 17. On 3 September 1971 the applicant’s unit commander endorsed his request for discharge and forwarded it through the chain of command to the separation authority. 18. On 14 September 1971 the separation authority approved the applicant's request for discharge, directed his reduction in grade to private (PV1)/E-1, as well as the issuance of an Undesirable Discharge Certificate. 19. After publication of discharge orders, the applicant was discharged on 15 September 1971. He was issued a DD Form 214 documenting his service as follows: * Block 5a (Grade, Rate or Rank) – Private (PV1) * Block 5b (Pay Grade) – E1 * Block 6 (Date of Rank) – 14 September 1971 * Block 11 (Type of Transfer or Discharge) – discharge * Block 11c (Separation Authority) – Army Regulation 635-200, Separation Program Number (SPN) 246 * Block 13a (Character of Service) – UOTHC * Block 26a (Non-Pay Periods Time Lost (Preceding Two Years)) – 48 days 20. On 29 October 1981 the Army Discharge Review Board (ADRB) sent the applicant a letter informing him the ADRB denied his request to upgrade his discharge. 21. On 12 August 1992 the ABCMR considered the applicant’s request to upgrade his characterization of service. The Board denied his request because the applicant failed to submit his application within the required time period (3 years from date of discharge) and he did not provide an explanation as to why it was submitted late. 22. On 27 December 2002 the Director of the ABCMR administratively closed the applicant’s application because he failed to submit his request for reconsideration within 1 year of the previous Board’s decision. 23. 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, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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 applicants' service. 24. 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 post-traumatic stress syndrome; 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. 25. The applicant provided medical documents signed by a civilian psychologist with a doctorate degree dated 10 May 2019. The psychologist stated the applicant was a combat Veteran who suffers with skin cancer, PTSD symptoms, had three failed marriages. He experiences nightmares, difficulty expressing himself, difficulty getting close to others, has outbursts of anger, difficulty discussing trauma, memory difficulties and he had depressive symptoms. The psychologist diagnosed the applicant with PTSD, chronic; major depressive disorder, recurrent episodic; and substance related addictive disorders, cannabis use disorder. 26. In the processing of this application a medical advisory was obtained from the Army Review Boards Agency staff psychologist. The psychologist restates the applicant’s military history and that she reviewed all available evidence to include the applicant’s civilian medical documents dated in 2019. Upon her review she stated there is documentation supporting the existence of a behavioral health condition at the time of the applicant’s discharge although he met medical retention standards in effect at the time. She opined the applicant’s PTSD is a mitigating factor for the misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 27. The applicant was provided a copy of the advisory opinion on 3 February 2020 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include service in Vietnam and a previous honorable discharge, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board considered the review and conclusions of the medical advising official and determined that there was sufficient evidence if in-service mitigation to overcome the misconduct and liberal consideration applied. Based on a preponderance of evidence, the Board determined that a change to the applicant’s character of service was appropriate. 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 amending the DD Form 214 for the period of service ending 15 September 1971 to reflect in item 13a. (Character of Service) – “Under honorable conditions (general)” vice “under other than 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. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is 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. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 2. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPN 246 was the code used for enlisted personnel separating under the provision of Army Regulation, Chapter 10 3. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 20 and orders to verify the entries on the DD Form 214. 4. Title 10, U.S. Code, section 1552, the Code of Federal Regulations which the ABCMR operates under states: a. The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. b. No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within 3 years after he discovers the error or injustice. However, a board established under subsection (a)(1) may excuse a failure to file within 3 years after discovery, if it finds it to be in the interest of justice. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 6. 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. 7. A memorandum from the Secretary of Defense, dated 25 August 2017, provided clarifying guidance regarding mental health conditions, sexual assault, and sexual harassment when reviewing requests for changes in discharges. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Invisible wounds are some of the most difficult cases and there are frequently limited records for the boards to consider, often through no fault of the veteran, in resolving appeals for relief. This clarifying guidance ensures fair and consistent standards of review for veterans with mental health conditions, or who experienced sexual assault or sexual harassment regardless of when they served or in which Military Department they served. Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including sexual assault. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000204 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1