ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20170016047 APPLICANT REQUESTS: his discharge from service be upgraded to an honorable characterization of service due to his diagnosis of post-traumatic stress disorder (PTSD) and major depressive disorder. He further requests through counsel the following corrections to his DD Form 214 (Report of Separation from Active Duty): * narrative reason for separation to "Secretarial Authority" * separation code to coincide with corrected narrative reason for separation * reenlistment code to "1" APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Civilian Counselor Statement with Cover Letter, dated 27 September 2017 * Exhibit 1 – Affidavit of Applicant * Exhibit 2 – Psychology Report dated 21 February 2017 * Exhibit 3 – Department of the Army (DA), Operational Report Lessons Learned for Headquarters (HQ), 299th Engineer (EN) Battalion (BN) for the period ending 31 July 1969 * Exhibit 4 – DA, Operational Report Lessons Learned for HQ, 299th EN BN for the period ending 31 October 1969 * Exhibit 5 – DA, Operation Report Lessons Learned for HQ, 299th EN BN for the period ending 30 April 1970 * Exhibit 6 – Article "The Forgotten Defenders of Dak To" * Exhibit 7 – Article "A case of cowardice under fire" * Exhibit 8 – Multiple photographs * Exhibit 9 – Character Reference Letter Jay G. * Exhibit 10 – HQ, 299th EN BN Commanding Officer Letter cover letter for General Orders Number 839, Award of Valorous Unit Awards * Exhibit 11 – Medical Treatment Letter * Exhibit 12 – Character Reference Letter Janet C. * Exhibit 13 – Character Reference Letter Carol P. * Exhibit 14 – Character Reference Letter Edward K. * Exhibit 15 – Character Reference letter Mark S. * Exhibit 16 – Character Reference Letter Michelle K. * Exhibit 17 – Character Reference Letter James T. * Exhibit 18 – Official Military Personnel File (Partial) * Exhibit 19 – Military Service Treatment Records * Exhibit 20 – excerpt from chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) * Counselor’s Letter with civilian medical records, dated 7 May 2018 * Counselor’s letter with Department of Veterans Affairs (VA) diagnoses and ratings summary, dated 31 January 2019 FACTS: 1. The applicant did not file within the 3 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. Counsel states: a. The applicant enlisted in the Regular Army in 1967. He deployed to the Republic of Vietnam in February 1969 where he was assigned to 299th Engineer (EN) Battalion (BN) (Combat) and stationed at Dak To and-Kontum in the Central Highlands. He arrived at the 299th EN BN during a critical period in the war when the enemy was intensifying their attacks against United States Armed Forces. He and members of his unit performed their engineering and soldiering tasks with no friendly back up support. As a result, there were a high number of casualties with the applicant witnessing many deaths and seeing seriously wounded Soldiers. He served in the Republic of Vietnam until his departure in February 1970. b. The applicant returned to the United States a changed man exhibiting many symptoms of PTSD (nightmares, difficulty sleeping, adrenaline rushes, shaking, anxiety, fear and shame). Without a proper diagnosis and in the absence of proper treatment, the applicant coped with his symptoms. To avoid continued military service, he went absent without leave (AWOL) on numerous occasions. In 1971, he separated from the U.S. Army with an Undesirable Discharge Certificate. He now seeks relief by upgrading his discharge through this Board. c. It was the applicant’s undiagnosed and untreated PTSD that led to his numerous periods of AWOL. As he did not receive medical treatment for his mental health conditions at the time of service, counsel asserts his discharge characterization of service is an injustice. If PTSD has been a diagnosis in 1970 and if he had received medical treatment, he might have avoided going AWOL. d. The applicant was diagnosed by a psychologist with PTSD post-service in 2017 and she states, in effect, more than likely he had the symptoms of PTSD while serving in the Republic of Vietnam and after his return to the continental United States. Counsel states, "She found a clear nexus between his mental health condition and the conduct leading to discharge." f. A legal error occurred with an injustice during the processing of the applicant’s administrative discharge because at the time of his service his mental health was impaired. Therefore, he was inhibited in his ability to understand his rights and to waive them during the administrative separation process. He was assigned to a special processing unit where the staff did not know or understand his wartime experiences and his PTSD symptoms were unknown. Counsel asserts the applicant received an "assembly line discharge." He further asserts that by comparison to today’s standards for separating Soldiers, a Soldier with PTSD must be considered as a mitigating factor when considering releasing a Soldier early from service. This right was not available to the applicant in 1971; therefore, he suffers from an injustice. The applicant has suffered from PTSD for more than 50 years. He was a hero at Dak To. g. He then outlines and explains the applicant’s military history including an injury at basic training that required medical treatment which hindered his ability to train as required. Counsel also surmises the applicant had difficulty adapting to the military lifestyle due to his multiple minor disciplinary infractions. Counsel asserts that due to his youth and immaturity he had two brief periods of AWOL. He reports to his unit in the Republic of Vietnam and counsel provides a lengthy explanation of his service and military experiences in an active combat zone. In 1969, the enemy initiated numerous counter attacks against United States Armed Forces including the applicant’s forward operating base which was hit by enemy rockets and mortars. (There were many casualties identified in the battalion’s operational reports and counsel provides many direct quotes from the same battalion operational reports to support the combat conditions that existed at the time of the applicant’s service.) h. During the applicant’s service with 299th EN BN he had two minor disciplinary infractions: missing movement (a bus departure) and missing reveille. For this period, his company commander rated his performance as "Excellent." He participated in numerous patrols where he witnessed numerous causalities due to booby traps emplaced by the enemy to harm and maim Soldiers. Counsel provides a 2007 magazine article showing Dak To suffered 45 percent casualties while defending itself against enemy forces. i. Against the applicant’s wishes, he was reassigned to the continental United States rather than being discharged as he had requested prior to deploying to the Republic of Vietnam. He went home where he tried to work with the U.S. Army to release him from his enlistment contract based on an agreement he had with government officials. His mental health was deteriorating without proper medical treatment. Counsel surmises that based on poor mental health, he went AWOL on multiple occasions for periods ranging from four to 90 days. He was court-martialed for some unauthorized absences and then after his last absence, when court-martial charges were preferred against him, he elected to request a discharge for the good of the service. In 1971, he received an Undesirable Discharge Certificate. j. Post-service the applicant continued to suffer from PTSD and major depressive disorder related to his combat service. He also sought relief of his PTSD symptoms (anxiety, fear, and insomnia) by using alcohol. He suffered from physical ailments including peripheral neuropathy, hearing loss, tinnitus, and neck and back conditions. Counsel uses excerpts from numerous character reference letters to show the applicant is a law abiding citizen, father, brother and friend. k. The justification for upgrading the applicant’s discharge is based on guidance and instructions identified in Secretary of Defense Chuck Hagel’s memorandum, dated 3 September 2014, and the memorandum from the Office of the Under Secretary of Defense for Personnel and Readiness, dated 26 August 2017. l. In 2017, the applicant underwent a psychological examination by a licensed psychologist wherein he was diagnosed with PTSD and major depressive disorder based on his combat experiences in the Republic of Vietnam. One of the symptoms of PTSD is avoidance behaviors such as going AWOL. In the psychological report provided to the Board, the psychologist states there is a link between the applicant’s mental health and his misconduct that led to his discharge. He exhibited anger, stress, and feelings of being overwhelmed upon his return from the Republic of Vietnam. Counsel interjects that the applicant’s absences were not premediated, rather they were impulsive and reckless actions caused by the triggering of his PTSD symptoms. The doctor explained the applicant was unable to manage the stressors in his life; therefore, he lacked the ability to think clearly and to behave appropriately. m. The Board should consider more mitigating factors such as his low Armed Forces Qualification Test and General Technical scores, his young age, and the fact at the time he lacked a high school diploma. n. The applicant’s ability to understand and process separation procedures under the provisions of Army Regulation 635-200, chapter 10 in lieu of court-martial proceedings were impaired because of his undiagnosed PTSD and major depressive disorder. Counsel explains the proceedings of how to process a separation under this specific chapter and how the applicant’s mental impairments effected his ability to understand the type of discharge he might receive and its effect on his life post-service. o. In 2009, Congress enacted a requirement that any Servicemember being separated under other that honorable conditions who deployed in support of a contingency operation in the past 24 months must undergo a screening for PTSD and traumatic brain injury by a qualified physician, clinical psychologist, or psychiatrist. The U. S. Army has shown progression in the treatment of Soldiers who are combat Veterans. Today, Army regulations require a very careful consideration of both the positive and negative factors prior to determining a Soldier’s characterization of service. p. The applicant has continued to display an honorable character by maintaining employment, he has no acts of indiscretion with the law and he is known to many for his honesty, diligence, reliability and perseverance. Counsel then inserts statements from the character reference letters to support the applicant’s contentions. q. In conclusion, the applicant is an American hero who served his country with distinction in the Republic of Vietnam, especially at Dak To. He paid the price for his service by living with PTSD and a less than honorable discharge for almost 50 years. Based on his meritorious service, his post-service conduct, and the mental health conditions that substantially mitigate his misconduct, counsel requests the Board upgrade the applicant’s discharge to honorable, change the narrative reason for separation to Secretarial Authority; change his separation code and his reenlistment code. 3. The applicant provided his own affidavit wherein he outlined his military career and preservice and post-service conduct. * before he went to the Republic of Vietnam, he was a normal teenager full of hope and aspirations including he wanted to be a firefighter like his dad * he left high school before graduating * he did not realize that by enlisting in the Regular Army during a war one might change his whole life * in basic training he injured his hand breaking three fingers when it was slammed in a door * he had many sick call visits to get treatment; he knows his many absences did not sit well with his superiors * at advanced individual training at Fort Leonard Wood, Missouri he received excellent ratings * he was transferred to Fort Hood, Texas where he also received excellent ratings despite receiving nonjudicial punishment * he received orders for Vietnam * before going to Vietnam, he worked out an agreement, “1049 paperwork,” with representatives of the U.S. Army authorizing his immediate discharge upon his return from Vietnam; * upon his arrival in Vietnam, he did not know the bus schedule and received nonjudicial punishment for missing movement, in 2 hours he caught up with his unit * in Kontum, he helped build bridges and roads performing engineer duties mostly at night; they were hit by incoming artillery fire almost every night and there were casualties to include he witnessed the death of a staff sergeant who perished before his eyes * enemy forces would try to infiltrate the compound * he once put his finger in a shrapnel hole of another Soldier trying to stop the bleedings before medics arrived * he was transferred to Dak To which was worse than Kontum as a battle zone * the enemy used Russian tanks that were powerful, loud and destructive; the enemy often infiltrated the compound at night * the United States forces were supported by the Army of the Republic of Vietnam soldiers who were supposed to pull security; they were not effective * his battalion then handled its own security while trying to do its engineering missions * his most dangerous duty was minesweeping where a squad of United States Soldiers would walk with minesweepers detecting mines and then blowing them up; Soldiers were killed or maimed trying to clear an area of mines * after minesweeping an area, enemy forces would return at night and insert more mines, it was not safe * he was involved in defending the compound from enemy attacks often with enemy soldiers infiltrating the compound, he was lucky to survive * after his return to the continental United States, the Army did not honor the "1040" agreement and he drove to the Pentagon to straighten it out * when the agreement was not honored, he felt betrayed and went home in an AWOL status, he now knows he had the symptoms of PTSD * he struggles with PTSD and alcohol abuse post-service * he continuously tries to be a good Citizen 4. The applicant enlisted in the Regular Army on 20 November 1967 for a 3-year period. The applicant was trained and qualified as a pioneer (engineer). A review of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from February 1969 to February 1970 as a pioneer. During this period he received a "Good" rating for conduct and an "Excellent" rating for efficiency while assigned to Company C, 299th EN BN. 5. The applicant’s disciplinary history included accepting nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). His official record contains five DA Forms 2627-1 (Record of Proceedings under Article 15, UCMJ), as follows: * on 7 December 1967, for being AWOL from 5 December to 6 December 1967 * on 12 February 1968, for being AWOL from 10 February to 11 February 1968 * on 28 February 1968, for having in his possession a DA Form 2a (Armed Forces Identification Card) which he knew to be false * on 29 October 1968, for being AWOL from 11 October to 16 October 1968 * on 22 July 1969 while in the Republic of Vietnam, for failing to repair at the appropriate time (attend formation) on 22 July 1969 * on 5 February 1969, for being AWOL from 8 January to on or about 23 January 1969 6. His disciplinary history also included multiple courts-martial as follows: a. On 18 June 1969, he was found guilty of missing movement while in the Republic of Vietnam on 18 May 1969. His punishment included forfeiture of $40.00 per month for 1 month, restriction for 30 days, and travel to and from a work site only. His court- martial was promulgated by Summary Court-Martial Order Number 8, dated 18 June 1969, issued by Headquarters, 299th EN BN. b. On 15 January 1971 (post-Vietnam service), he was found guilty of three specifications of being AWOL from 16 April to 15 July 1970; from 21 July to 21 September 1970; and from 13 November to 17 November 1970 all while assigned to the Special Processing Detachment, Fort Devens, Massachusetts. His punishment included forfeiture of $100.00 pay per month for 3 months and reduction to private/pay grade E-2. His court-martial was promulgated by Special Court-Martial Number 34, dated 29 January 1971, and issued by Headquarters, U.S. Army Garrison Troop Command (Provisional), Fort Devens, Massachusetts. c. On 8 March 1971, he was found guilty of two specifications of being AWOL from his unit from 26 January to 29 January 1971 and again from 11 February 1971. At this time he was assigned to Headquarters, 18th EN BN (Combat) located at Fort Devens, Massachusetts. His punishment included forfeiture of $100.00 pay per month for 1 month. 7. On 9 March 1971 he went AWOL and was dropped from the rolls of the U.S. Army on 8 April 1971 as recorded on DA Form 188 (Extract Copy of Morning Report). His company commander of Company A, 18th EN BN (Combat) conducted an inquiry into the applicant’s reported absence. He stated the applicant had just received a court- martial sentence the day before for being AWOL. The applicant has a history of being AWOL and he did not leave notice as to where he went. The company commander also wrote a letter to the applicant’s mother informing her that her son was AWOL and all is pay and allowances had stopped. 8. The applicant’s appointment and rank history as recorded on his DA Form 20 shows: * private (PVT)/pay grade E-1 with date of rank (DOR) 20 November 1967 * PV2/E-2 with DOR 20 March 1968 * PVT/E-1 with DOR 29 October 1968 by Special Orders 320 * PV2/E-2 with DOR 19 February 1969 * private first class (PFC)/E-3 with DOR 21 February 1969 * PV2/E-2 with DOR 29 January 1971 by Special Court Martial Order Number 34 * PVT/E-1 with DOR 28 July 1971 by Army Regulation 600-200 (Enlisted Personnel Management) (automatic reduction due to under other than honorable conditions discharge) * PV2/E-2 with DOR 29 January 1971 by Department of Defense (DoD Army Discharge Review Board (ADRB) Special Discharge Review Program (SDRP) 9. A review of his DA Form 20, item 41 (Awards and Decorations) shows the applicant is authorized the following awards as provided in Army Regulation 672-5-1 (Decorations and Awards): * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medial with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 10. The applicant’s official military personnel filed does not contain any documents pertaining to his 1971 separation. The Board assumes administrative regularity in that what was done at the time was both proper and right in accordance with governing administrative regulations, policies and statutes. There is evidence showing in 1968 his chain of command initiated separation action against him in accordance with Army Regulation 635-212 (Personnel Separations – Discharged – Unfitness and Unsuitability) for unfitness. The request for discharge was closed favorably for the applicant and he deployed to the Republic of Vietnam. 11. Special Orders 164 issued by Headquarters, Fort Devens, Massachusetts on 3 August 1971 ordered the applicant’s discharge effective 4 August 1971 with issuance of an Undesirable Discharge Certificate. Further, it was ordered that his characterization of service would be under other than honorable conditions. 12. Accordingly, he was discharged from the Regular Army on 4 August 1971. He was issued a DD Form 214 showing he completed 3 years, 4 months and 21 days of net service with 172 days of lost time under the provisions of Title 10, U.S. Code, section 972. His DD Form 214 contains the following pertinent information: * item 5a (Grade, Rate or Rank) – private * item 5b (Pay Grade) – E1 * item 11c (Reason and Authority) – Army Regulation 635-200, Separation Program Number 246 and "Administrative Proceedings" * item 13a (Character of Service) – under other than honorable conditions * item 13b (Type of Certificate Issued) – DA Form 258A (Undesirable Discharge Certificate) * item 15 (Reenlistment (RE) Code) – RE 3B * item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – shows the entry "NA" for not applicable * item 30 (Remarks) – Republic of Vietnam from 1 February 1969 to 5 February 1970 13. Presidential Proclamation 4313 (PP 4313), issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. 14. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as the PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered. 15. On 17 May 1977, the ADRB reviewed the applicant’s application. The ADRB reviewed the applicant’s official military personnel file and determined he met the criteria for a review because he satisfactorily completed an assignment in Southeast Asia in support of operations in the Western Pacific 24 months prior to discharge. The secondary criteria were his age, general aptitude and length of service at time of discharge. His education level was also considered. The ADRB opined that possible personal problems may have contributed to his less than honorable discharge. In a spirit of compassion, the ADRB upgraded the applicant’s discharge to general, under honorable conditions. Based on the decision of the ADRB, his original DD Form 214 was voided. 16. Accordingly, he was issued a new DD Form 214 containing the following pertinent information: * item 5a (Grade, Rate or Rank) – private * item 5b (Pay Grade) – E2 * item 9c (Reason and Authority) – Army Regulation 635-200, Separation Program Number 246 and Department of Defense (DoD) Discharge Review Program (Special) with Separation Program Designator "KCR" * item 9e (Character of Service) – under honorable conditions * item 9f (Type of Certificate Issued) – DA Form 257A (General Discharge Certificate) * item 10 (Reenlistment (RE) Code) – RE 3B * Item 19 (Indochina or Korea Service since August 5, 1964) – Yes, 1 February 1969 to 5 February 1970 * item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – shows the entry "NA" for not applicable * Item 27 (Remarks) – 172 days lost under the provisions of Title 10, U.S. Code, section 972 17. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny a discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 18. Public Law 95-126 provided in pertinent part for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 19. The applicant’s military record was reviewed under the guidance for the SDRP and under the provisions of Public Law 95-126. He received a letter explaining the provisions of a court-order that directed an administrative review of discharges. Based on a review and accompanying letter dated 4 December 1978, he was issued an addendum providing new Index Numbers relating to his contentions, issues, rationale and/or comments considered in his first Case Report and Directive (ADRB). There was no change in his characterization of service. 20. Further, his discharge was reviewed again under the provisions of Public Law 95- 126. He received written notification from the ADRB stating he did not qualify for upgrading under the new uniform standards for discharge review. Therefore, the SDRP did not affirm his discharge upgrade and he was issued a DD Form 215 (Correction to Military Record) reflecting this fact. The SDRP did not change or modify his upgraded discharge, rather it confirmed he was not eligible for benefits under the VA. 21. Counsel submitted a large volume of evidence in support of its application to the Board. Within counsel’s narrative summary, counsel used the battalion operational reports issued by Headquarters, Department of the Army to describe the harsh conditions the applicant and his unit endured during numerous counter-offensive campaigns undertaken by enemy forces at or near Dak To. These reports also contain causality reports for those who were killed in action and wounded in action by aggregate number. The reports outline and define the battalion’s mission at or near Dak To including friendly elements had departed the area leaving the battalion and its small force to maintain and hold the friendly forward operating base. Counsel also provided news articles which he outlines in his summary brief for the Board’s review again describing the enemy forces and their actions in a jungle environment. 22. Counsel provides a psychological assessment report including the licensed psychologist professional resume attesting to her credentials. She states she evaluated the applicant under the provisions of the Diagnostic and Statistical Manual of Mental Disorders (DSM), 5th Edition. Based on her clinical interviews and PTSD assessment tools, she diagnosed the applicant with PTSD and major depressive disorder. She states these two mental health conditions probably existed at the time of his service and have been present through his post-Vietnam service. She outlines each of the PTSD criterion showing he experienced traumatic events, has intrusive thoughts based on those events, exhibits avoidance behavior, and he has negative alteration in cognition and mood associated with the traumatic event. Further, he has marked alteration in arousal and reactivity based on his wartime experiences. Finally, his emotional disturbances causes clinically significant distress or impairment in social, occupational or other important areas of functioning. She then reviewed his military record outlining his avoidant behaviors by repeatedly going AWOL. She also found evidence he underwent a psychological assessment in 1968 where he was found to have a "character and behavior disorder." (This assessment is not filed in his record rather it is mentioned during his first administrative separation process for unfitness.) 23. Counsel provides General Orders Number 839, dated 9 April 1970, issued by Headquarters, U.S. Army Vietnam awarding elements of 299th EN BN (Combat) and its attached unit the Valorous Unit Award for extraordinary heroism while engaged in military operations during the period from 9 May 1969 to 1 July 1969. 24. Counsel provides numerous character reference letters attesting to the applicant’s post-service conduct identified by separate exhibits. a. His sister writes she witnessed his deteriorating health conditions over the past 40 years from a young vibrant man to one who is disabled. This process has been a painful process for her to watch. She loves her brother, but he struggles daily with PTSD and other physical ailments that hinder his ability to adequately function. She recalls that as a young girl she would ask adults why her brother would scream in the night. He would wake up sweating and confused. She concludes by stating it is time to acknowledge his service in the Army and that his service is directly responsible for the difficulties he deals with daily. b. His partner writes she has known him for over 30 years and they have been together for 28 years. While living with him she has witnessed many episodes of his disrupted sleep due to nightmares from his service in Vietnam. She has also witnessed first-hand the effects of his exposure to Agent Orange on his body. He suffers from numerous ailments due to that exposure. One of his ailments is neuropathy in his feet. He finds it very difficult to stand and walk. He takes numerous medications for his multiple ailments. His health is rapidly deteriorating, and he needs help now. c. A fellow firefighter who served in the Boston Fire Department and on firefighter association boards states the applicant was an important influence on his life. He had known him for more than 30 years and attributes his success in life to his relationship with the applicant. d. A friend of over 50 years wrote on the applicant’s behalf. He states they grew up together in the same neighborhood in Dorchester, Massachusetts. He continuously relies on the applicant with trust and confidence under any circumstance. He also employed the applicant in his flooring business where he found him to be a reliable and hardworking employee who never failed to deliver an honest day’s work on a regular basis. He was conscientious, affable and willing to learn and worked harmoniously and constructively with others. Due to his failing health, he stopped working for his friend. e. His daughter writes it’s been nearly a half century and still he does not have Veteran’s benefits. He is permanently disabled due, in part, to the effects of Agent Orange. She remembers her father being a very hard worker performing manual labor for many years until his health prevented him from working. He frequently goes to the doctors for his various ailments. She asks the Board to favorably upgrade his discharge so he can receive the Veteran’s benefits he is due for his wartime service. She concludes by stating he deserves to be recognized for his many sacrifices while serving our Nation. f. A friend of more than 40 years writes on behalf of the applicant requesting his discharge be upgraded to a more favorable characterization of service. He states the applicant worked for him in his printing business for years. He was a good employee always reporting to work on time and gave 100 percent effort on the job. The applicant was a reliable employee with a strong work ethic until he started to have medical complications that inhibited his ability to work. 25. 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. 26. 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 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 misconduct that led to the discharge. 27. On 11 January 2018, the Army Review Boards Agency (ARBA) staff psychologist was asked to review and prepare a medical advisory opinion after reviewing the applicant’s personnel, medical service treatment records, VA records through the Joint Legacy Viewer and the evidence submitted by counsel. He restates the applicant’s military history including his deployment for 1 year to the Republic of Vietnam. The psychologist briefly restates the applicant’s records of indiscipline which ultimately led to his Undesirable Discharge Certificate for his many periods of being AWOL. He found evidence that during the applicant’s early training he received a behavioral health evaluation showing he exhibited a character and behavioral disorder. Any consideration of separation for a character and behavior disorder was overlooked when the applicant volunteered to serve in the Republic of Vietnam. He confirmed a civilian psychologist diagnosed the applicant with PTSD and major depressive disorder stemming from his combat experiences. The ARBA psychologist found there was a nexus between the applicant’s misconduct that led to his less than honorable discharge and his mental health diagnoses. He opines there is evidence the applicant was suffering from PTSD related symptoms when he went AWOL (avoidant behaviors), poor judgment and impulsivity post-Vietnam service. He concludes by stating it is likely that his behavioral health conditions contributed to the misconduct that led to his early and undesirable separation from active duty. A copy of the complete medical advisory was provided to the Board for their review and consideration. 28. On 17 February 2018, the applicant’s counsel responded to the advisory opinion which was sent to him and the applicant by the staff of the Agency. Counsel expressed his written agreement with the medical advisory and encourages the Board to give the advisory full consideration when reviewing and deciding on the applicant’s current petition before the Board. Counsel states the medical advisor rightly concludes the applicant exhibited PTSD symptoms post-Vietnam service. Further, based on a very limited understanding of PTSD at the time of the applicant’s discharge, it likely “attributed his misconduct, and periods of unauthorized absences to the effects of his deployment services.” The civilian psychologist who diagnosed the applicant in 2017 corroborates his trauma and conduct that led to his undesirable discharge. 29. 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 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. 30. On 31 January 2019, counsel wrote to the Board providing the Board with the applicant’s Department of Veterans Affairs (VA) diagnoses and rating summary. The applicant has a combined rating of 70 percent with a rating of 70 percent for PTSD and 10 percent for tinnitus. 31. On 7 May 2019, counsel sent the staff of the Board a letter asking the Board to expedite the application due to the applicant’s poor health. Counsel provided medical records showing the applicant was hospitalized under emergency conditions for stomach problems. The applicant has a host of medical problems to include exposure to Agent Orange, neuropathy, and significant pain in his legs leading to mobility impairment. He concludes by saying the applicant seeks medical treatment for his PTSD, but cannot afford it. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, counsel remarks and evidence of a character and behavior disorder, his record of service to include conduct and efficiency ratings and service in Vietnam, the frequency and nature of his misconduct, his medical diagnoses, the reason for his separation and whether liberal consideration applies. The Board considered the SRDP review, the civilian psychologist diagnosis and letters of reference provided by the applicant and the conclusions of the advising official; the Board found there were mitigating factors for his misconduct. Base on a preponderance of evidence, the Board determined that liberal consideration applied and the character of service he received should be upgraded. The Board did not find sufficient evidence to determine a change was required to the applicant’s reason for separation, separation code or reenlistment code. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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, in addition to the corrections stated in the Administrative Note(s) that follow, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 4 August 1971 to show in item 13a. (Character of Service) – General Under Honorable Conditions. 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 his discharge to “Honorable”, correction of the narrative reason for separation, separation code or reenlistment code. 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): 1. The applicant’s DA Form 20 shows he is entitled to the following awards: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medial with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 2. Army Regulation 600-8-22 (Military Awards) shows during his period of service in the Republic of Vietnam he served during four named campaigns. Therefore, he is entitled to have affixed to the Vietnam Service Medal four bronze service stars. 3. Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated 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. d. Chapter 5, Section II (Secretarial Authority) provided for the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 3. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation program designator (SPD) codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * Separation Program Number (SPN) 246 was the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 at the time of the applicant’s service 4. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 4 will be assigned to members separated with an SPD code of KFS (formerly SPN 246). For the SPD code of KFF, it will be determined by an appropriate authority (Headquarters, Department of the Army directive). ABCMR Record of Proceedings (cont) AR20170016047 17 1