ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170010583 APPLICANT REQUESTS: in effect, that the Army Board for Correction of Military Records (ABCMR) affirm the upgrade of his discharge to under honorable conditions under the Department of Defense (DOD) Special Discharge Review Program (SDRP) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * documents from his personnel service record * documents from the Department of Veterans Affairs (VA) * letter of support * certificate of appreciation FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 enlisted in the U.S. Army on 30 August 1968. He served for 3 years, 2 months, and 13 days. He served a tour of duty in Vietnam as a Combat Engineer from 3 March 1970 to 21 January 1971. During his service in Vietnam and for many years following his return, he suffered from unrecognized and undiagnosed post- traumatic stress disorder (PTSD). It is his assertion this condition contributed to his misconduct leading to a less than honorable character of service. b. On 13 April 1977, he applied for a special upgraded discharge under the Department of Defense Discharge Review Program (Special) and was granted an upgrade to Under Honorable Conditions (General) effective 20 May 1977. After a second review by the U.S. Army Review Board on 4 April 1974, the decision was unfavorable; consequently, this constituted a bar to all benefits authorized by the VA. He was accepted into the VA’s Healthcare System and was diagnosed with PTSD. Subsequently, he applied for VA Compensation and was found to be 50 percent disabled due to PTSD; however, this decision was found to be issued erroneously by the VA due to his character of service and he is not receiving any monetary benefits. c. It is noteworthy to point out over the past ten years, he has been active in a Veterans of Foreign Wars Post serving in his current capacity of Senior Vice Commander and Surgeon for the 5th District of New York State. He is not asking the Board to condone his misconduct, but the Board should base their decision on the evidence presented and reflected by his tour of duty in Vietnam and subsequent PTSD supported by a medical diagnosis which he feels was a causative factor in his behavior. It is noted on the applicant’s DD Form 149, he requests an upgrade to fully honorable. 3. The applicant enlisted in the Regular Army on 30 August 1968. He served in Vietnam from 3 March 1970 to 21 January 1971. 4. The applicant accepted non-judicial punishment on the following occasions: * 3 April 1969, for being asleep on his post * 1 May 1969, for failing to obey a lawful order * 23 November 1970, for disobeying a lawful order * 20 April 1971, for being absent from his unit without proper authority * 2 July 1971, for being absent from his unit without proper authority 5. Special Court-Martial Order 38, dated 30 June 1969, shows the applicant pled guilty and was found guilty of 5 specification of being absent from his place of duty without proper authority and 1 specification of failing to obey a lawful order. His punishment consisted of forfeiture of $35.00 per month for four months, confinement at hard labor for 4 months, and reduction to pay grade private E-1. 6. The applicant’s complete separation packet is not available for review; however, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 20 January 1972, for the good of the service, with separation program number 246, denoting he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separation – Enlisted Personnel). His service was characterized as Under Other Than Honorable Conditions (UOTHC). He completed 3 years, 2 months, and 13 days of net active service this period. He was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) 7. On 14 July 1977, the applicant was informed that after reviewing the findings and conclusion of the Army Discharge Review Board (ADRB), the Secretary of the Army directed he be informed that his UOTHC discharge had been upgraded to Under Honorable Conditions (General) effect 20 May 1977. He was informed new separation documents were enclosed. 8. The applicant’s reissued DD Form 214 (Report of Separation from Active Duty) shows his character of as Under Honorable Conditions. The Authority and Reason contains the entry DOD Discharge Review Program (Special). 9. On 26 May 1978, ADRB informed the applicant that his upgraded discharge under review standards required by Public Law 95-126 could not be affirmed. 10. On 9 August 2017, the ABCMR obtained an advisory opinion from a Psychologist with Army Review Boards Agency (ARBA), who states, in part, based on thorough review of available medical records, there is a lack of evidence that the applicant met criteria for PTSD during his military service. Despite a lack of military medical records indicating a behavioral health diagnosis, there is however indication that the applicant was experiencing a significant amount of stress and possibly PTSD-like symptoms following his return from Vietnam. PTSD-like symptoms and Alcohol Abuse appear to have negatively impacted his motivation to continue serving in the military and can be associated with poor judgment, impulsivity, and avoidant behaviors, such as being absent without leave. Given that PTSD was not recognized as a diagnosis during the applicant’s time in service, it is unlikely that he or anyone else recognized and attributed his misconduct and periods of unauthorized absences to the effects of his deployment experiences. Supporting medical documentation from the VA indicated the applicant has received treatment at the VA for PTSD and has a disability rating of 50 percent. In summary, given the applicant’s need for continued supportive services, it is likely that PTSD-like symptoms contributed to the misconduct that led to his separation from Active Duty. A copy of the complete medical advisory is available for the Board’s review. 11. On 11 August 2017, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He responded on 23 August 2017, stating he did not wish to submit any additional evidence. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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 charged, 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. 13. On 8 October 1977 Public Law 95-126 was enacted. This legislation required that the Service Departments establish historically consistent uniform standards for discharge reviews. Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards. Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review. 14. In reaching its determination, the Board can consider the applicant's petition, his statements, the medical advisory, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found that full relief was warranted. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and the Medical Advisory and found the statement and evidence of PTSD to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s PTSD is a mitigating factor in the misconduct that resulted in the applicant’s discharge characterization. Therefore, the Board agreed that the applicant’s initial SDRP upgrade to General, Under Honorable Conditions should be affirmed. The Board further found that due to the applicant’s PTSD and evidence of post-service honorable conduct, the General, Under Honorable Conditions Discharge should be upgraded to Honorable. 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: 1. amending item 27 (Remarks) of the applicant’s DD Form 214, dated 72-01-20, showing the following: * Add: “Discharge Reviewed UP PL 95-126 and Determination Made That Characterization of Service Was Warranted UP Per DOD SDRP * Add: “SDRP Discharge Approval on 14 July 1977 to General, Under Honorable Conditions Has Been Affirmed Per ABCMR Proceedings AR20170010583 Dated 8 July 2019 OR * item 9e (Character of Service) to "Honorable" * item 9c (Authority and Reason) to "Army Regulation 635-200, paragraph 5-3; Secretarial Authority; SPD JFF,” * item 9f (Type of Certificate Issued) to “DD Form 256” 2. Issue the applicant an Honorable Discharge Certificate, DD Form 256. X CHAIRPERSON 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-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 of the version in effect at the time provided that a member who committed an offense or offenses 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 charged, 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. 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. A general discharge was 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. 3. On 8 October 1977 Public Law 95-126 was enacted. This legislation required that the Service Departments establish historically consistent uniform standards for discharge reviews. Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards. Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review. 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 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. 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 (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. 6. 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. //NOTHING FOLLOWS//