IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20170008111 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. 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), dated 4 May 2017 * DD Form 149 (Application for Correction of Military Records), dated 4 May 2017 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), undated * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 October 1974 * Article, subject: "Applicant" from the Creole Magazine, dated May 1993, 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 received an under other than honorable conditions discharge because he went absent without leave (AWOL) while stationed at Fort Hood, TX, due to his company commander denying his request for personal emergency leave. b. His unit notified him through a Red Cross notification that his mother was hospitalized and having open heart surgery. He was unsure if his mother's condition was critical or not and he believed at the time that there was a greater than not chance for her to pass away during her surgery. Due to the fact that this was a serious medical condition and he may not have seen his mother alive again, he made the decision to walk away from his duties as Memorial Activities Specialist (Burial Detail), military occupational specialty (MOS) 57F20, which drove the character of his discharge. c. His company commander told him his mother's medical condition was not an emergency and his presence was not required. d. He called his brother for more details and his brother confirmed their mother was having open heart surgery. His brother, who had limited mental and learning abilities, was determined to be at their mother's side during surgery. His brother was frantic and distraught. e. He acknowledges his actions to leave the base without permission were in violation of Army regulations and the choice he made was unjustifiable, thus neglecting his responsibilities to the United States Army. f. He could not leave his family alone or his mother to die alone. It was years later before he fully understood his rash and panicked reaction to the news of his mother's condition. g. While in Vietnam he served on burial detail and their lives were dominated by death, the dying, and suffering. Many of the Soldiers who gave their lives were alone in life and again in death. Many were unclaimed in death, forgotten or abandoned. Strangers were no longer strangers. Everybody became someone he knew because death attaches itself to you when you witness it in the sheer numbers that he had the honor of holding testimony for in the absence of family. His view of death changed because he changed. h. When he returned home he visited funeral homes regardless of whether he knew the deceased. Years later, his wife questioned his visits and he told her of his sadness of witnessing all of those dead men having no one to claim their bodies, morn their loss or even acknowledge their lives. He finally understood why he thought of his mother dying alone without him being there devastated and destroyed his ability to make a sound decision. i. He requests the Board to take into account his service record and frame of mind during his family emergency. j. His statement was accompanied by an addendum and statement from his spouse. She stated she had known him for 25 years and they had been married for 19 years. He told her his reason for volunteering for two additional tours in Vietnam was to keep his brother out of Vietnam. He also told her the reasons for visiting funeral homes and how his experiences while serving affected him. 3. On 29 November 1966, the applicant enlisted in the Regular Army in the rank/grade of private/E-1. 4. Records show the applicant arrived in Vietnam on 27 May 1967. 5. Headquarters, 199th Infantry Brigade (Separate) (Light), Vietnam, Special Orders Number 81, dated 21 March 1968, promoted him to the temporary rank/grade of specialist four (SP4)/E-4 effective 21 March 1968. 6. On 28 April 1968, he was honorably discharged while in Vietnam for immediate reenlistment. His DD Form 214 for this period shows in: a. item 5a (Grade, Rate, or Rank) – SP4/E-4, Temporary, b. item 22c (Foreign and or Sea Service) – U.S. Army, Vietnam, 11 months and 4 days, c. item 24 (Decorations, Medals, Badges, Commendations, Citations, Campaign Ribbons Awarded or Authorized) – he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) 7. On 29 April 1968, he reenlisted while in Vietnam. 8. On 21 May 1968, his duty status was changed to casual and enroute to the Continental United States. 9. He served in a second tour in Vietnam beginning on 11 January 1969. 10. Headquarters, 4th Infantry Division, Special Orders Number 279, dated 6 October 1969, promoted him to the temporary rank/grade of sergeant (SGT)/E-5 with the MOS 57F40 (Mortuary Affairs Specialist) effective 12 September 1969. 11. Headquarters, 4th Infantry Division, Vietnam, General Orders Number 7937, dated 13 December 1969, awarded him the Army Commendation Medal for the period January 1969 to January 1970 for meritorious service in connection with military operations against an armed hostile force in the Republic of Vietnam. His rank was shown as SGT. 12. On 14 January 1970, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for possession of 0.36 grams, more or less, of marijuana and use of marijuana, on or about 1800 hours, 6 December 1969. His punishment consisted of reduction from SGT/E-5 to SPC4/E-4 and a written Letter of Reprimand. He did not appeal the punishment, but stated he was not guilty of the charges and he did not know how the drugs got in his shirt. He got the shirt from a house girl and put his name on the shirt to be in uniform to go to Saigon. He did not indulge in any type of drugs. 13. On 17 January 1970, his duty status was changed to casual and enroute to the Continental United States. 14. On 10 April 1970, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failure to go to his appointed place of duty on 24 February 1970. His punishment consisted of reduction SGT/E-5 to SP4/E-4 which was suspended until 10 August 1970 and forfeiture of pay in the amount of $50 per month for 2 months. (The record is void of evidence of when he was promoted to SGT a second time). He did not appeal the punishment. 15. On 4 August 1970, his suspended reduction to SP4/E-4 was vacated. 16. On 6 August 1970, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty on 7 July 1970. His punishment consisted of reduction to private first class (PFC)/E-3 which was suspended until 6 December 1970, forfeiture of $62.00 of pay, and restriction to the company area with 14 days of extra duty. He did not appeal the punishment. 17. On 5 November 1970, his suspended reduction to the rank/grade of PFC/E-3 until 6 December 1970 was remitted. 18. On 9 December 1970, he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for using disrespectful words towards his superior noncommissioned officer on or about 1745 hours, 2 December 1970. His punishment consisted of reduction to PFC/E-3, forfeiture of $39.00 of pay for one month, and restriction to the company area to include billets, mess hall, place of duty, place of worship, and medical facilities for 14 days. He did not appeal the punishment. 19. 16th Field Service Company Unit Orders Number 98, dated 14 December 1970, reduced him to PFC/E-3, effective 8 December 1970. 20. His DD Form 188 (Extract Copy of Morning Report), dated 27 January 1971, shows, in part, his duty status was listed as AWOL on 28 December 1970. 21. His DD Form 553 (Deserter Wanted by the Armed Forces), dated 27 January 1971, shows on 0730 hours, 28 December 1970, he was reported as absent from his place of duty at 16th Field Service Company, Fort Lee, and he was dropped from the rolls on 26 January 1971. 22. A Commander's Inquiry Concerning AWOL Personnel, dated 27 January 1971, shows he departed his unit in an AWOL status on 28 December 1970 and a letter was sent to his father advising him to notify proper authorities of the whereabouts of his son. The applicant was pending court-martial action at the time of his departure and on 26 January 1971, he was dropped from the rolls of his unit as a deserter. 23. On 7 March 1973, the applicant was returned to military control. 24. His DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), undated, shows his status was changed to absence and dropped from the rolls on 8 March 1973. 25. On 27 August 1974, he was returned to military control at Fort Polk, LA, and he was assigned to the U.S. Army Personnel Control Facility, Fort Hood TX. 26. U.S. Army Personnel Control Facility, Unit Orders Number 143, dated 16 September 1974, reduced him in rank/grade PVT/E-1 with an effective date of 13 September 1974 by reason of approval for discharge from military service with an undesirable discharge. 27. Headquarters, III Corps and Fort Hood, Special Orders Number 195, dated 1 October 1974, discharged him effective date 1 October 1974 with a service characterization of under other than honorable conditions, and authorization of issuance of a DD Form 258A (Certificate of Undesirable Discharge). 28. His DA Form 20 (Enlisted Qualification Record) shows in: a. item 31 (Foreign Service), he served in Vietnam during the periods – * 27 May 1967 to 26 May 1968 * 11 January 1969 to 17 January 1970 b. item 41 (Awards and Decorations) – he was awarded or authorized: * Army Good Conduct Medal * Republic of Vietnam Campaign Medal with Device (1960) * Vietnam Service Medal * four overseas service bars * Army Commendation Medal c. item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) – 1341 days AWOL from 28 December 1970 to 29 August 1974. 28. On 1 October 1974, he was discharged from the Army. His DD Form 214 shows he completed 2 years, 9 months, and 1 day of net service; in: a. item 9c (Authority and Reason) – Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with Separation Program Designator Code KFS. b. item 9e (Character of Service) – Under Other Than Honorable Conditions. c. item 9f (Type of Certificate Issued) – DD Form 258A. d. item 16a (Primary Specialty) – 57F20, Memorial Activity Specialist, 6 October 1969. e. item 16b (Related Civilian Occupation and Dictionary of Occupational Titles) – Funeral Attendant, 359.878. f. item 18b (Prior Active Service) – 1 year and 5 months. g. item item c (Total Active Service) – 4 years, 2 months, and 1 day. h. item 18f (Foreign and/or Sea Service This Period) – 1 year and 1 month. i. item 21 (Time Lost (Preceding Two Years)) – 709 days. j. item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with one silver service star * Republic of Vietnam Campaign Medal with Device (1960) * Army Commendation Medal k. item 27 (Remarks) – 1341 days lost under Title 10, United States Code 972. 29. He provided an article from the Creole Magazine, dated May 1993, wherein it briefly describes his successful career path since leaving the Army. The article shows he is a successful businessman and he owns and runs several businesses in his community. 30. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 31. The ABCMR has asked the Agency medical advisor to review this case. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation; the Report of Proceedings (which outlines the applicant’s military history and the circumstances of his case) and the VA electronic medical record (Joint Legacy Viewer-JLV). The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’ period of service. No hard copy military medical records were provided for review. a. In his personal statement, the applicant states that, while in Vietnam, he served on the burial detail and saw death, dying and suffering on a daily basis. After he returned from Vietnam, he received a Red Cross message informing him that his mother was undergoing open heart surgery. He requested emergency leave but states his commander deemed his mother’s surgery was not an emergency and refused to grant him emergency leave. After speaking with his brother who had cognitive challenges and was distraught and frantic about their mother’s surgery, the applicant made the decision to absent himself without leave in order to care for his family. In his wife’s statement to the ABCMR , she states that one of the reasons the applicant volunteered for two tours in Vietnam was to keep his brother from being sent to Vietnam. b. Review of the applicant’s military history indicates that he entered the military on 29 Nov 1966. He was deployed to Vietnam from 27 May 1967 to 26 May 1968. While in Vietnam, he was honorably discharged from the Army on 28 Apr 1968 and reenlisted the next day. He served a second tour of duty in Vietnam from 11 Jan 1969 to 17 Jan 1969. On 14 Jan 1969, he accepted non-judicial punishment (NJP) for possession of 0.36 grams marijuana or less and for use of marijuana. On 10 Apr 1970, he accepted NJP for failing to report to his place of duty on 24 Feb 1970. On 6 Aug 1970, he accepted NJP for failing to go to his place of duty on 7 July 1970. On 9 Dec 1970, he accepted NJP for using disrespectful words towards a superior NCO. On 28 Dec 1970, he was reported as AWOL and on 27 Jan 1971, he was dropped from the rolls. On 7 March 1973, he was returned to military control. ON 8 March 1973, his status was changed due to absence and he was dropped from the rolls. He returned to military control on 27 Aug 1974. On 1 October 1974, he was separated from the Army with an Under Other Than Honorable Conditions discharge. c. Review of the VA electronic medical record (JLV) indicates that the applicant is 100% service connected for PTSD. Behavioral Health diagnoses listed in the VA medical record include PTSD and Alzheimer’s disease. d. Based on the available information and in accordance with the Liberal Consideration guidelines, it is the opinion of the Agency medical advisor that the applicant has a mitigating Behavioral Health condition, combat-related PTSD. Review of his records indicates that his misconduct began after his second deployment to Vietnam. This pattern of behavior is consistent with the natural history of combat-related PTSD. Moreover, his wartime burial detail duty undoubtedly exposed him to significant death and dying on a daily basis. As there is an association between PTSD and avoidance behavior, there is a nexus between his diagnosis of PTSD and his repeated incidents of AWOL and failing to report. Moreover, as there is an association between PTSD and problems with authority issues, there is a nexus between the applicant’s diagnosis of PTSD and his incidents of disrespectfulness toward a superior NCO. Finally, as there is an association between PTSD and the use of illicit drugs to self- medicate PTSD symptoms, there is a nexus between his diagnosis of PTSD and his illicit use and possession of marijuana. 32. The Board should review the applicant’s claim in accordance with published Department of Defense guidance for liberal consideration of discharge upgrade requests and equity, injustice and clemency determinations. BOARD DISCUSSION: After reviewing the application and all supporting evidence, including the medical advisory opinion, the Board found sufficient evidence to recommend relief. The Board agreed with the medical advisory opinion that the applicant’s PTSD was a mitigating factor in the misconduct that resulted in his discharge characterization. Therefore, the Board found sufficient evidence to change the applicant’s discharge characterization to General, Under Honorable Conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 applicant’s discharge characterization on his DD Form 214, ending 1 October 1974, to “General, Under 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. ADMINISTRATIVE NOTE(S): N/A. 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 (Active Duty Enlisted Administrative Separations), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. 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. b. 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. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 3. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "KFS" corresponded to "conduct triable by court-martial," and the authority, Army Regulation 635-200, chapter 10. 4. 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 post-traumatic stress disorder (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. 5. 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. 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. 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs 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. a. 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008111 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1