ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170014869 APPLICANT REQUESTS: an upgrade to his under honorable conditions discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical documents * Board of Officer Proceedings 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 his record should be corrected to show he had signs and symptoms of post-traumatic stress disorder (PTSD) and his discharge should be upgraded to honorable. 3. The applicant enlisted in the Regular Army on 11 February 1969 and was honorably discharged on 30 March 1971, for immediate reenlistment. 4. The applicant served in the Republic of Vietnam from 25 September 1969 to 24 September 1970. 5. The applicant accepted non-judicial punishment on the following occasions: * 15 February 1970, for failing to report to appointed place of duty * 8 May 1970, for being sleep on post * 21 July 1970, being absent from his appointed place of duty * 21 January 1971, for failing to report to his place of duty at the prescribed time * 18 July 1972, for failure to report to place of duty at the prescribed time * 30 January 1973, failure to report to his place of duty * 20 September 1974, failure to report to place of duty at prescribed time * 22 May 1975, disobeying a lawful order 6. The applicant was issued a Bar to Reenlistment on 27 March 1974. 7. The applicant was tried before a Special Court-Martial on 27 September 1975 for failure to go at the prescribed time to his appointed place of duty. His punishment consisted of forfeiture of $100.00, reduction to pay grade private E-2, and restriction to company area for twenty one days. The sentence was adjudged on 5 November 1975 and approved on 21 November 1975. 8. A Mental Hygiene Consultation Service Evaluation, dated 6 November 1975, found the applicant to be cleared for any administrative action deemed appropriate by command. The consultation found the applicant was cooperative in giving information as requested. His affect and mood were appropriate. His memory functioning was intact. He was oriented times three, insight was poor (putting blame on others for his actions). His judgment was poor, no apparent suicidal ideation, but thoughts of doing harm to others because of his situation. The applicant seemed very illogical in his situation. He showed no apparent disorders of thought, cognition or perception. 9. On 9 December 1975: a. The applicant’s commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), due to unfitness. The applicant was informed of his available rights. b. The applicant acknowledged receipt of the commander’s intent to separate him and consulted with counsel. After consulting with counsel, the applicant requested his case be considered by a board of officers and a personal appearance before a board of officers. 10. On an unspecified date, a board of officers found the applicant unsuitable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses. Rehabilitation was not deemed possible. The board of officers recommended the applicant be discharged from the service because of unsuitability with issuance of a General Discharge (GD) Certificate. 11. On 12 March 1976, the separation authority approved the recommendation of the Board of Officers that the applicant be discharged because of unsuitability with issuance of a GD Certificate. 12. The applicant was discharged on 22 March 1976, under the provisions of Army Regulation 635-200, paragraph 13-5b (3). His characterization of service was “Under Honorable Conditions.” He was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal with four bronze service Stars * Republic of Vietnam (RVN) Campaign Medal with Device (1960) * RVN Gallantry Cross with Palm Unit Citation * Overseas Service Bar (2) 13. On 1 November 2017, the ABCMR obtained an advisory opinion from a Medical advisor/Psychologist with Army Review Boards Agency (ARBA), who states, in part, 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 condition(s) for the offenses which led to his separation from the Army. The applicant did submit a note from a licensed provider showing a diagnosis of PTSD. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. On 2 November 2017, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively). Members separating under this provision of the regulation could receive either an honorable or a general discharge. 16. In reaching its determination, the Board can consider the applicant's petition, his statements, and medical/service documents, 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 medical advisory opinion and the applicant’s statement and found the statement and evidence of honorable service, in the form of one prior honorable discharge and honorable service as a combat veteran in Vietnam, to be compelling. Although the Board agreed with the ARBA medical advisory opinion that the applicant’s in-service medical records do not support PTSD as a mitigating factor for his discharge characterization, the Board found that the applicant’s case warrants clemency in that the applicant’s honorable prior service and honorable wartime service have mitigated the simple misconduct resulting in the discharge characterization. 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 amending the applicant’s DD Form 214 dated “19760322” item 9e (Character of Service) to show “Honorable” vice “Under Honorable Conditions”. 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 requirements and procedures for administrative separation of enlisted personnel. a. 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. b. Chapter 13 in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 3. 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 Discharge Review Boards(DRB)s 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. 4. 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//