ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170001200 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 AR20060005169 on 21 December 2006. 2. The applicant states as a result of his service in Vietnam he suffers from post- traumatic stress disorder (PTSD). He served with distinction while in Vietnam. He came close to losing his life on several occasions. He received several awards to include the Purple Heart (PH) and an Army Commendation Award (ARCOM). 3. The applicant served in Vietnam from 4 April 1969 to 3 April 1970. On 12 November 1969, the applicant was awarded the PH for wounds received in connection with military operations against a hostile force on 11 November 1969. 5. On 12 November 1970, the applicant accepted non-judicial punishment for breaking restriction. 6. On 16 December 1970, the applicant was charged with wrongful possession of marijuana. 7. The applicant was charged with being absent without leave for the periods 18 December 1970 through 8 April 1971 and 12 April 1971 through 27 August 1973. 8. On 13 September 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an UOTHC Discharge; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an UOTHC Discharge and waived the right to provide statements on his own behalf. 9. On 24 September 1973, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200. He directed that the applicant be issued an Undesirable Discharge Certificate. 10. On 28 September 1973, the applicant was discharged with a characterization of service as UOTHC. The applicant had completed 2 years, 3 months, and 22 days of creditable active service with a total of 1012 days of lost time due to AWOL. 11. On 21 October 2006, the ABCMR denied the applicant’s request for an upgrade of his UOTHC discharge. 12. On 25 May 2017, the Army Review Boards Agency clinical psychologist provided an advisory opinion. The advisory found based on the available information, it appears that the applicant may have developed a behavioral health condition while he was in the Army. However, the available medical documentation (his separation SF 93, his reported hospitalizations while AWOL, his hospitalization at Walter Reed upon return to military control in 1973) is sparse and inadequate in that it provides no diagnostic or treatment information. The applicant has provided no civilian medical documentation of PTSD or any other Behavioral Health diagnosis. Consequently, due to insufficient medical evidence, no statement regarding mitigation of the applicant’s offenses can be made at this time. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. In response to the advisory opinion, the applicant states he saw a psychiatrist at Hartford Hospital. He called them and they could not find his records. He also saw a doctor at Walter Reed Army Hospital after his return from Vietnam. He had nightmares and sleep disorders. While in Vietnam he saw children with their limbs blown off, old women with shrapnel in their face and a Soldier decapitated by a rocket. He had rats and snakes crawling on him while he slept. He has nightmares about his experiences. He received the Vietnamese Cross for Gallantry. He attempted suicide on several occasions and drugs only enhanced his nightmares. He had a heart attack 3 years ago. He is now drug free, except for prescription medication. He believes he is entitled to a general, under honorable conditions discharge (GD) based on service in Vietnam. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge UOTHC is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on liberal consideration and equity, injustice, or clemency determinations. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and his rebuttal and published DoD guidance on consideration of discharge upgrade requests. The Board discussed his service in Vietnam, his Purple Heart, the frequency and nature of his misconduct, the conclusions of the advisory opinion and his statement in response and the application of liberal consideration or clemency. The Board determined that there was insufficient evidence to mitigate his misconduct and that the characterization of service he received was appropriate. 2. 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 :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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. An UOTHC discharge is normally considered appropriate. b. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states 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 (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. 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 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. 4. 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. ABCMR Record of Proceedings (cont) AR20170001200 2 1