IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20170001210 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to under honorable conditions (general). 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * clemency discharge letter, dated March 1976 * psychological evaluation, dated 21 January 1986 * Vietnam Veterans of America Press Release, dated 12 September 2016 * four third-party statements with dates ranging from 18 February 1989 to 6 February 1990 * three third-party character reference letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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. The applicant states: a. He spent two tours in Vietnam, suffers from post-traumatic stress disorder (PTSD), and he made some bad decisions. His wife left him during his second tour. He was a high school drop-out. He attempted suicide while in Vietnam and was sent to the hospital in Dnang (sic). While at Fort Knox, KY, he was falsely accused of rape and spent three months in the local jail and was charged with absent without leave (AWOL) by the military. He was released and returned to the base and was beaten and robbed by military guys who almost killed him. He went to the hospital with broken ribs and an eye injury and was sent to duty. He was reduced from E-5 to E-4, fined $400, and sent back to duty at Ft Campbell, KY. He went on leave and decided not to go back. He was messed up on alcohol trying to cope with Vietnam and marriage. b. He was not allowed to see a mental health professional after his requests. It was not until after he was sent to prison in 1986 that he received a mental health evaluation. He still suffers from PTSD due to his experiences in Vietnam. He has come a long way since then and he is trying to get his life back in order and do the right things. This discharge has followed him all of his life and he is only asking that the Board upgrade his discharge so that he may get the treatment he never received while he was in the service. He feels that if he had received the help he requested while he was in, it may have prevented many of the bad decisions he made. He asks for mercy so that he may get the treatment he needs in order to cope with his PTSD issues from Vietnam and due to the relaxation of law for those with PTSD and other than honorable discharges. 3. The applicant was born on 15 February 1949. He enlisted in the Regular Army on 9 September 1966. Based on his age at the time (17 years and 6 months), his enlistment required parental consent. 4. The applicant's DA Form 20 (Enlisted Qualification Record) shows in: * item 31 (Foreign Service), he served in Vietnam from 20 February 1967 to 16 September 1968 (1 year, 6 months, and 27 days) * item 33 (Appointments and Reductions), he was promoted to the rank of specialist five/E-5 on 21 April 1968 * item 38 (Record of Assignments), he received conduct and efficiency ratings of "excellent" through the end of his service in Vietnam 5. On 14 April 1969, the applicant was found guilty by a special court-martial of being absent without leave (AWOL) from 18 October 1968 to 19 February 1969. The sentence consisted of forfeiture of $75.00 per month for four months and reduction to the rank of specialist four/E-4. 6. A DA Form 19-32 (Military Police Report) shows the applicant departed AWOL on 13 May 1969 and remained AWOL until he was apprehended by civilian authorities on 15 August 1969. 7. On 8 September 1969, court-martial charges were preferred against the applicant for his AWOL offense. 8. On 16 September 1969, 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. 9. In connection with his request, he acknowledged that 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 could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (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 10. The separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate and the applicant's reduction to the rank of private/E-1 based on the characterization of his service. His DD Form 214 confirms he was discharged on 25 September 1969 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under conditions other than honorable. 11. The Army Discharge Review Board (ADRB) denied the applicant request for an upgrade of his discharge on 13 February 1973. 12. In a letter dated 18 March 1976, the applicant was informed that he was granted a Clemency Discharge pursuant to Presidential Proclamation (PP) 4313 of 16 September 1974. He was also advised that although the ADRB denied his case on 13 February 1973, he could apply to the ABCMR. The letter also shows he was issued a DD Form 215 amending item 30 (Remarks) of his DD Form 214 to reflect the Clemency Discharge. 13. The applicant provided: a. A psychological evaluation, dated 21 January 1986, showing that he was evaluated as part of a court ordered psychological evaluation to determine if he was mentally ill at the time of alleged criminal acts and his competency to stand trial. The evaluation shows he was diagnosed with major depression, alcohol dependence, and mixed substance abuse. b. A Vietnam Veterans of America Press Release, dated 12 September 2016, discussing the military's failure to properly consider the effects of PTSD, traumatic brain injury (TBI), military sexual trauma, and other service-related conditions before administratively separating Soldiers with less than honorable discharges. c. Four third-party statements with dates ranging from 18 February 1989 to 6 February 1990, recommending the applicant's early release from prison. d. Three third-party character reference letters attesting to the applicant's positive character and post-service accomplishments and strongly recommending the upgrade of the character of his discharge. 14. On 30 December 2019, the Army Review Boards Agency psychologist/medical advisor provided an advisory opinion. The advisory found no evidence of a behavioral health condition during the applicant's period of service which would mitigate the misconduct that resulted in his separation from the Army. However, the medical advisor recommends the Board take into consideration that his initial AWOL was while he was in confinement under civilian authority and consider compassionate upgrade to a general discharge based on his 18 month tour in Vietnam and record of positive service prior to his AWOL. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 5 January 2020 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the medical advising official based on available medical records. Although the medical advising official found no evidence of a behavioral health condition that mitigates the misconduct that led to his discharge, the Board concurred with the medical advising official's assessment that the length of his service in Vietnam and his performance prior to going AWOL support upgrading his discharge. The Board also noted the letters of support the applicant provided and found them compelling. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). 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 his DD Form 214 to show his service was characterized as under honorable conditions (general) and to show he held the rank/grade of specialist four/E-4 with a date of rank of 14 April 1969. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 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, provides 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. 3. 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. 4. 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; 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. 5. PP 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle the individual to VA benefits. Rather, it restored Federal and, in most instances, State civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service, the original undesirable characterization of service would be retained. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001210 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1