ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20170017079 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Board for Correction of Military Records (ABCMR) Memorandum of Consideration Docket Number AC95-11094, dated 18 December 1996 * 4 pages of medical records * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Detroit Police Department Letter of Clearance * copy of a press release about the Fairness for Veterans Amendment 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 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC95-11094 on 18 December 1996. 3. The applicant states the U.S. Army did not consider his mental illness. 4. The applicant enlisted in the Regular Army on 23 August 1966. His DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 7 March 1967. 5. The applicant's records shows his entitlement to two awards of the Purple Heart for wounds received in combat and that he was awarded two Army Commendation Medals for heroism in combat. 6. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 6 September 1967, for leaving his post as a lookout without being properly relieved. 7. The applicant departed Vietnam on 6 March 1968. 8. The applicant received NJP on 14 May 1968 for three specifications of failure to repair and on 6 June 1968 for being absent without leave (AWOL) on 3 and 4 June 1968. 9. The applicant's records also show he was found guilty by: a. special court martial on 3 October 1968 for being AWOL during the periods 11-16 and 22-26 August 1968; b. summary court-martial on 29 April 1969 for being AWOL from 7 March to 15 April 1969; c. special court-martial on 6 June 1969 for being AWOL from 5 to 23 May 1969; d. special court-martial on 30 July 1969 for being AWOL from 19 to 24 June and 25 June to 17 July 1969. 10. The applicant departed AWOL on 7 October 1969 and was declared a deserter. He surrendered to the U.S. Embassy, Ottawa, Canada, on or about 15 April 1973. 11. On 1 May 1973, the applicant consulted with legal counsel and he was advised of his command's intent to separate him from the Army under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion), Section VII (Desertion and AWOL) with an undesirable discharge. The applicant was advised of the basis for the contemplated separation action, its effect, and the rights available to him. He elected to waive his rights. 12. Accordingly, the applicant was discharged on 11 May 1973 under the provisions of Army Regulation 635-206, Section VII. His DD Form 214 confirms he was discharged with his service characterized as under other than honorable conditions. 13. The applicant provided: a. Medical records showing he was diagnosed with various medical conditions that include post-traumatic stress disorder (PTSD) and major depressive disorder. b. Detroit Police Department Letter of Clearance indicating the applicant does not have a criminal history record. 14. On 13 December 2017, the Army Review Boards Agency medical advisor/psychologist provided a medical advisory opinion. The opinion states that a review of the available documentation found sufficient 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, the applicant had mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 14 December 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the applicant’s combat service, wounds and awards for valor, the frequency and nature of his misconduct, the conclusions of the advising official regarding a mitigating condition and application of liberal consideration of his request. The Board determined, based on the evidence and advisory, that liberal consideration would be applied and supported a correction to the applicant’s record. The Board also concurred with the recommended correction in the Administrative Notes below. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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: In addition to the Administrative correction below, 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 reissuing the applicant a DD Form 214 for the period of service ending 11 May 1973 showing his characterization of service as 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. ADMINISTRATIVE NOTE(S): 1. A review of the applicant's records revealed orders for awards that are not listed on his DD Form 214. Additionally, he was awarded the Vietnam Service Medal; however, he participated in three campaigns during his service in Vietnam (Vietnamese Counteroffensive Phase II (1 July 1966 - 31 May 1967), Vietnamese Counteroffensive Phase III (1 June 1967 - 29 January 1968), and Tet Counteroffensive (30 January – 1 April 1968)). Further, his unit of assignment in Vietnam received unit awards for service during his period of assignment that are not shown on his DD Form 214. 2. His DD Form 214 should be amended by deleting the Purple Heart and the Vietnam Service Medal and adding the: • Purple Heart (2nd Award) • Army Commendation Medal (3rd Award with "V" Device) • Vietnam Service Medal with three bronze service stars • Presidential Unit Citation • Meritorious Unit Commendation • Republic of Vietnam Gallantry Cross with Palm Unit Citation 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 635-206, in effect at the time, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and AWOL or desertion. Section VII of the regulation provided for the separation of personnel who were charged with AWOL or desertion. Discharge under that provision was authorized only when the period of unauthorized absence was for 1 year or more and retention in the Army was either precluded by regulations or was not considered desirable or in the best interest of the Government. An undesirable discharge was normally considered appropriate. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the 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. Paragraph 3-7b provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records 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 veteran's service. ABCMR Record of Proceedings (cont) AR20170017079 4 1