ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 December 2019 DOCKET NUMBER: AR20170013985 APPLICANT REQUESTS: * An upgrade of his characterization of service from under other than honorable conditions to honorable. * Personal Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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 (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, that his mental health was the cause of him not making the right decisions for his country when he went absent without leave (AWOL). He also states that after 48 years he is still bothered. He went home from Germany in 1967, before Vietnam. When in Vietnam, he witnessed things no man should have to see. He had to pick up body parts of several friends and fellow Soldiers, even holding fellow Soldiers until they died. This was a horrific time of his life, and day after day it worked hard on his mind and nerves. He went AWOL because he wasn’t getting help he needed, and he felt he was no good as a noncommissioned officer, friend or husband. He was definitely not a good Soldier, but made sergeant 9 months into Vietnam. After Vietnam, he was transferred to Fort Sill for the longest 10 months of his life. He needed mental help, but couldn’t’ get any until he went to Korea, and was sent home on two occasions because of his nerves. He was having nightmares, cold sweats, mood swings, shakes, nervous anxiety, and all the symptoms of post-traumatic stress disorder (PTSD). He was wrong for going AWOL, but he wasn’t getting the help he needed at the time. 3. A review of the applicant’s service record shows: a. He enlisted on 28 October 1965 in the Regular Army (RA). b. He was honorably discharged on 30 December 1966 for immediate reenlistment. He reenlisted in the RA on 31 December 1966. c. His DA Form 20 (Enlisted Qualification Record) reflects he was declared: * AWOL for a period of 19 days from 30 July 1969 to 17 August 1969 * AWOL for a period of 29 days from 1 January 1970 to 29 January 1970 * Dropped from rolls (DFR) for a period of 1270 days from 30 January 1970 to 22 July 1973 d. Court marital charges were preferred on 25 July 1973. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of AWOL period of 1300 days from 1 January 1970 to 23 July 1973. e. He consulted with legal counsel on 25 July 1973 & 3 August 1973. He subsequently requested voluntary discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge f. On 6 August 1973, his immediate commander recommended approval of his request, stating his retention is neither practical nor desirable. He recommended an under other than honorable conditions characterization of service. g. On 31 August 1973, his brigade commander recommended approval of his request, stating his lengthy AWOL and rejection of further military service. He recommended an under other than honorable conditions characterization of service. h. After a legal review conducted on 11 September 1973, the separation authority approved the applicant’s request for discharge for the good of the service under the provision of AR 635-200, chapter 10 for the good of the service and directed the issuance of an Undesirable Discharge Certificate. He was reduced to the lowest enlisted pay grade. i. He was discharged with a under other than honorable conditions characterization of service under the provision of AR 635-200, chapter 10 on 18 September 1973. He had 4 years, 3 months, and 23 days of active service. 4. In the processing of this case, the Army Review Boards Agency medical advisory/ psychologist reviewed the applicant's case and rendered an advisory opinion on 25 September 2019. The psychologist opined: a. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum, the reviewed documents do support the existence of a behavioral health condition at the time of discharge. b. The applicant's records indicate that the applicant did meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness). c. PTSD is considered a mitigating factors for the misconduct that resulted in his discharge. 5. On 7 October 2019, the applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 6. There is no evidence that the applicant applied to ADRB within the 15 years since discharge. 7. On 15 March 2016, he solicited the support of his elected official for support in filing his claim with ABCMR. There has been continuous inquiries to the ARBA Congressional Liaison. ARBA liaison responded on 6 March 2018, 22 June 2018, 11 September 2018, and 16 October 2019. 8. By regulation AR 635-40, the mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 9. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 10. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. 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. 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 partial relief was warranted. Based upon the medical advisory advisory’s finding that the PTSD of the applicant did mitigate the misconduct, the Board concluded that upgrading the characterization of service of the applicant’s separation to Under Honorable Conditions (General) was appropriate. The Board found that with the large amount of AWOL in the record, an Honorable discharge was not appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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, 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 10, of this regulation, states that a soldier who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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 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. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. It states that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 4. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 5. AR 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. 7. 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 based on 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170013985 5 1