ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20170013308 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge to an honorable discharge based on post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Clinical Psychologist of the Mental Health Clinic and Stress Disorder Program at the Federal Health Care Center (FHCC), dated 16 May 2017 * Letter from Licensed Clinical Social Worker (LCSW), dated 19 May 2017 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 24 Feb 1970 * Compensation and Pension (C&P) rating information from VETSNET, dated 1 October 2012 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. He states his misconduct was due to PTSD. He is currently rated by the Department of Veterans Affairs (VA) with a disability rating of one-hundred percent. He was just made aware of the (Hagel Memo). 3. The applicant provides a letter from his clinical psychologist that verifies he has been under treatment at the Mental Health Clinic and Stress Disorders Program for PTSD beginning 2005 to present time. He also provides a letter from his licensed clinical social worker which affirms he has been seen by her since January 1989. In addition, he provides his C&P rating information. 4. Review of the applicant’s service records shows: 1. a. He enlisted in the Regular Army (RA) on 22 October 1965. He completed basic combat and advanced individual training and he was awarded military occupational specialty 55B (Ammunition Storage Specialist). b. He served in Vietnam from 13 October 1966 to 12 November 1968. c. On 16 December 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) from not being at his place of duty on 14 December 1967. d. He was honorably discharged on 9 May 1968 for immediate reenlistment. His DD Form 214 for this period of service shows he completed 2 years, 6 months, and 18 days of active service. He was awarded or authorized: * National Defense Service Medal * Republic of Vietnam Campaign Medal with "1960" Device * Vietnam Service Medal * 3 overseas Bar e. He reenlisted in the RA on 10 May 1968, for a 4-year period while in Vietnam. f. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain several documents that show: (1) On 7 July 1969, a letter from The Adjutant General advised the Commanding General at Fort Sill, OK of an FBI Report highlighting the applicant's criminal record for auto theft, breaking and entering, and burglary between the dates of 12-13 June 1969. (2) On 17 October 1969, a letter from the State of Wisconsin Department of Health and Social Services Division of Corrections, Wisconsin State Reformatory notifying the U.S. Army Personnel Services Support Center that the applicant was transferred to their facility to serve 18 months of imprisonment for armed robbery and that they needed a summary of his service record. (3) On 28 October 1969, DD Form 13 (Statement of Service) was provided by The Adjutant General which reflects the applicant's record of service. There were no disabilities noted and there was no pertinent information available for medical or psychiatric treatment. (4) DD Form 214 that shows he was discharged on 24 February 1970. It shows he was discharged under other than honorable conditions. The reason and authority cited are AR 635-206 (Personnel Separations-Discharge), Separation Program Number 284 for a Civil Conviction. He completed 1 year, and 27 days of active service during (1) this period and he had 258 days of lost time. He was authorized the following awards on item 24: * National Defense Service Medal * Army Commendation Medal * Good Conduct Medal * Republic of Vietnam Campaign Medal with "1960" Device * Vietnam Service Medal with 1 Oversea Bar 5. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 23 October 2017. He opined: a. The applicant's medical conditions were considered during medical separation processing, based on a presumption of government regularity. Also, the applicant has made no reference to having cited his mental status at the time of his offenses before or during his sentencing by the State of Wisconsin. The applicant met medical retention standards in accordance with chapter 3 of AR 40-501, (Medical Services - Standards of Medical Fitness) and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) applicable to his era of service. b. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health conditions for the offenses, which led to his separation from the Army. 6. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal. He did not respond by 30 November 2017. 7. The governing regulation in effect at the time (AR 635-206) provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year. 8. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the seriousness misconduct and the medical advisory’s finding that the applicant did not have mitigating medical or behavioral health conditions for the offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/16/2019 CHAIRPERSON Signed by: 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. Army Regulation (AR) 635-206, in effect at the time: a. Set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). It provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. b. An individual discharged for conviction by civil court normally would be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case. 2. AR 635-200 (Personnel Separations) provided for the separation of enlisted personnel. It stated: a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. 3. Title 10, U.S. 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 Army Board for Correction of Military Records (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. 4. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, 1. which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 6. 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 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. 7. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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 1. 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.