ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170000300 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge and a personal appearance before the Board if required APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * letter, dated 2 November 2016, in lieu of DD Form 149 (Application for Correction of Military Record) * 12 pages of Department of Veterans Affairs (VA) medical progress notes, dated 23 September 2016 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 AR20150010024 on 15 November 2016. 2. The applicant states he is requesting the ABCMR have the Army Review Boards Agency (ARBA) medical advisor reevaluate his case based on the enclosed records from his psychiatrist at the Lebanon VA Medical Center – York Outpatient Clinic. He was diagnosed with post-traumatic stress disorder (PTSD) and he is currently being treated for this along with other diagnoses. He is also requesting his case be analyzed based upon the enclosed documentation along with the facts and circumstances submitted in March and April 2016 that supplemented what was originally submitted in 2015. He is available to make a personal appearance before the Board to clarify all questions the Board may have. 3. The following is a summary of the applicant's counsel's contentions in support of the applicant's previous case: a. The applicant suffers from mental and physical problems from his military service and wants compensation so he can support his family. The VA denied his 2014 disability claim because his character of service is under other than honorable conditions. b. Chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) cites in paragraph 10-1a, "A Soldier ... may submit a request for discharge in lieu of trial by court-martial." In his sworn statement, he denies submitting a request in lieu of trial and states he was found not guilty of all charges during his court-martial in 1971. Paragraph 10-9 states, "the request for discharge in lieu of trial by court-martial will be filed in the military personnel records jacket (MPRJ) yet this request is not part of his military records and he denies seeing anything like the figure in paragraph 10-1 in AR 635-200. c. The applicant suffers from PTSD and a mild traumatic brain injury (TBI). d. The applicant should have been formally counseled concerning the consequences of receiving a discharge under other than honorable conditions. The applicant provides evidence in his sworn statement that his attorney told him his undesirable discharge would automatically be upgraded to honorable after six months. e. The applicant was reassigned to Germany. He received orders to go to Vietnam and returned home on leave prior to his deployment. According to the applicant's sworn statement and DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), he did not return to his debarkation point of Fort Lewis as scheduled because he thought he might never return from Vietnam. He arrived in Vietnam on 10 November 1970 and went on combat patrols, performed guard duty at a quarry guarding drill vehicles, and he performed vehicle escort duty. After returning from one of his escort duty missions, he was scared for his life when he was taken into custody and accused of "wiring frag" to a captain's bunk. He was imprisoned at Long Binh stockade and his mental problems stem from his job in prison as an orderly. The applicant saw three or four people hang themselves and held them up until the guards arrived to take them down. He could not take it anymore and asked to be removed from orderly duties. f. The applicant asserts he was found not guilty during his court-martial. The judge asked him if he wanted to go back to his unit or be discharged and he told the judge that he just wanted to go home after the way he was treated, the way he was scared when taken into custody, and then the difficult experiences he endured in prison. The applicant asserts his attorney told him his undesirable discharge would automatically change to an honorable discharge after six months. He trusted this would occur. He also states he never submitted a written request to be discharged. g. The applicant's discharge is inequitable. He did not request a discharge in lieu of a trial by court-martial. His discharge should be upgraded to honorable in accordance with paragraphs 3-9 and 5-3 of AR 635-200. The preponderance of the evidence shows that he did not request a discharge under the provisions of chapter 10, AR 635-200. He also did not receive a mental health evaluation prior to discharge as required by paragraphs 1-14 and 10-9, AR 635-200. h. Evidence submitted with his application as well as the 2014 report from the VA psychologist showing he suffers from mental health conditions related to his service in Vietnam warrants review. i. The preponderance of the evidence shows the rights available to the applicant were denied during discharge proceedings. He did not receive a mental health status evaluation and his mental and physical conditions warranted disability proceedings prior to his discharge. He did not request discharge in lieu of trial by court-martial yet the authority used to discharge him was chapter 10, AR 635-200. He was not formally counseled concerning the consequences of receiving a discharge under other than honorable conditions. j. In conclusion, the Board should favorably upgrade the applicant's character of service to honorable. The Board should decide that he suffers from PTSD/TBI and physical disabilities attributable to his military service and award retroactive VA disability compensation to his time of discharge or at a minimum to the time his VA claim was submitted in 2014. 4. The applicant enlisted in the Regular Army on 15 August 1969. He served in Germany from 28 January to 4 August 1970. 5. Orders issued on 30 July 1970, directed the applicant's reassignment to Vietnam via the Overseas Replacement Station at Fort Lewis, WA, with a reporting date of 18 October 1970. The orders show he was authorized 30 days leave. 6. It appears the applicant did not report to the Overseas Replacement Station on 18 October 1970 as directed by the orders issued on 30 July 1970. As a result, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on 3 November 1970 from being absent without leave from 18 October to 2 November 1970. 7. The applicant arrived in Vietnam on 10 November 1970. 8. The applicant received NJP under the provisions of Article 15, UCMJ, on 26 January 1971 for being absent from his place duty. 9. The applicant's complete separation proceedings are not available; however, his records contain the following documents: a. DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 23 March 1971, showing the applicant was pending court-martial action for violating Articles129 and 134 (communicating a threat and attempted murder). He was sent to the Long Binh Stockade awaiting trial. b. An endorsement from the Commanding General, U.S. Army Engineer Command, Vietnam, to the Commanding Officer, 35th Engineer Group, subject: Discharge for the Good of the Service. This documents states: (1) Request for discharge for the good of the service under the provisions of chapter 10, AR 635-200 is approved. (2) (applicant's rank and name) will be reduced to the lowest enlisted grade and will be furnished and Undesirable Discharge Certificate. c. Two Standard Forms 88 (Report of Medical Examination), dated 13 July 1971, showing the applicant underwent a medical examination for the purpose of separation under the provisions of chapter 10, AR 635-200. These documents also show he was found medically qualified for separation. d. Special Orders Number 209, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 28 July 1971, directing the applicant's discharge effective 28 July 1971, for the good of the service, with an under other than honorable conditions characterization of service. e. DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge) showing the applicant was discharged, in pay grade E-1, on 28 July 1971 under the authority of AR 635-1200, chapter, with his service characterized as under other than honorable conditions. 10. In connection with the processing of the applicant's previous case, the ARBA's senior medical advisor provided an advisory opinion on 26 September 2016. The opinion found that the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 26 September 2016 and given an opportunity to submit comments. He did not respond. 12. In connection with the processing of the applicant's previous case a second medical advisory opinion was obtained from the ARBA's psychiatrist on 26 October 2016. The advisory found that based on the information available, there is insufficient evidence to support the applicant's contention that he developed PTSD while in the military. 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 26 October 2016 and given an opportunity to submit comments. He did not respond. 14. In support of his request for reconsideration, the applicant provided 12 pages of medical progress notes, dated 23 September 2016. These documents show he was diagnosed with PTSD, among other diagnoses. 15. On 2 February 2017, the ARBA's psychologist/medical advisor provided an advisory opinion. The advisory states that although he provides VA progress notes showing a diagnosis of PTSD, even if one were willing to grant that applicant had PTSD as a result of the uncorroborated traumata he represents as having happened to him in the Long Binh Jail, these traumata occurred after the misconduct that led to his discharge. A review of the available documentation did not discover evidence of mental health considerations that are sufficient to change the character of the discharge in this case. A nexus between the applicant's misconduct and stresses on his mental health was not discovered. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. The applicant was provided a copy of the advisory opinion on 3 February 2017 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, medical advisory opinions and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered his medical documentation, PTSD diagnosis and the review and conclusions of the medical advising officials. The Board found, based on the misconduct and the events claimed to lead to PTSD that there was insufficient evidence of a mitigating condition. The Board found that the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :WJS :CAD :SMP 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. 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 their service. 3. 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 service discharge review boards and service boards for correction of military/naval records 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. ABCMR Record of Proceedings (cont) AR20170000300 6 1