ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20180000090 APPLICANT REQUESTS: reconsideration of his prior request for upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment Record – Armed Forces of the United States), dated 1 March 1961 * partial DA Form 20 (Enlisted Qualification Record) * Standard Form 89 (Report of Medical History), dated 29 October 1963 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), covering the period 1 March 1961 through 16 December 1963 * 24th Evacuation Hospital (Semi-Mobile) General Orders Number 36, dated 18 March 1967 * 12 pages of largely illegible service medical records * partial Standard Form 93 (Report of Medical History), dated 17 September 1975 * Standard form 513 (Clinical Record – Consultation Sheet), dated 22 September 1975 * DA Form 3082 (Statement of Medical Condition), dated 25 September 1975 * DD Form 214, covering the period 17 December 1963 through 11 November 1975 * multiple letters to and from the Department of Veterans Affairs (VA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110010917 on 14 December 2011. 2. The applicant states: a. He requests an upgrade of his UOTHC discharge due to the fact he suffers from traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD). b. On 16 March 1967, he sustained a head injury in Vietnam when a mortar round landed in their sector. It was a very serious injury for which he was hospitalized. He has lingering issued because of this injury and the immediate effects included memory loss, disorientation, and other TBI related disorders that caused his absence without leave (AWOL). c. He received the Purple Heart as a result of being wounded in action. His AWOL was not intentional in nature and due to the injury he sustained, he believes he should be able to receive VA benefits. He currently does not qualify for service-connected compensation due to the characterization of his discharge. 3. The applicant enlisted in the Regular Army on 1 March 1961. 4. A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 18 June 1963 for drinking in the billets and creating a disturbance in the billets at 0045 on 18 June 1963. 5. He provided a Standard Form 89, dated 29 October 1963, which shows he underwent a medical examination for the purpose of separation and was in good health at the time. 6. His DD Form 214 shows he was honorably discharged from active duty on 16 December 1963, after 2 years, 9 months, and 16 days of net active service this period for the purpose of immediate reenlistment. 7. His records contain multiple other DA Forms 2627-1, showing he accepted further NJP on the following dates for the following infractions: * 1 May 1964, for absenting himself from bed check on 29 April 1964 and remaining in the village in Korea until about 0245 on 30 April 1964 when he was apprehended by the military police * 10 August 1964, for being apprehending by the military police while in possession of an illegal pass in Korea, on 8 August 1964 * 22 December 1964, for being disrespectful in language to a noncommissioned officer on 19 December 1964 and for being found with an unauthorized pass on 19 December 1964 8. His DA Form 20 shows he arrived in Vietnam on 28 December 1966, where he was assigned to the 1st Battalion (Mechanized), 5th Infantry Regiment effective 4 January 1967. Despite his previous acceptance of NJP, his conduct and efficiency was rated as excellent throughout his service until his hospitalization on 30 March 1967, after which it was unrated. 9. 24th Evacuation Hospital (Semi-Mobile) General Orders Number 36, dated 18 March 1967, show he was awarded the Purple Heart on 18 March 1967 for being wounded in action on 16 March 1967. 10. On 30 March 1967 he was admitted as a patient to the Medical Hold Detachment at 106th General Hospital, Japan, and transferred as a patient to the Medical Holding Company, William Beaumont General Hospital, El Paso, TX, on 21April 1967. 11. He again accepted NJP on 7 August 1967, for absenting himself from the Medical Holding Company, William Beaumont General Hospital, El Paso, TX on 4 July 1967 and remaining absent until on or about 2400 hours on 3 August 1967. 12. Records indicate his duty status was changed from present for duty to dropped from the rolls on 22 January 1968, and again changed from dropped from the rolls to present for duty on 9 September 1975, when he was apprehended by civilian authorities and returned to military control. The period of time from 22 January 1968 through 9 September 1975 was determined to have been lost time. 13. The applicant provided a partial Standard Form 93, dated 17 September 1975, wherein he stated he was in good health, although he did check he had the following conditions: * frequent or severe headache * eye trouble * head injury 14. He also provided a Standard Form 513, dated 22 September 1975, where in a doctor annotated after examination that he reviewed the applicant’s medical history with him, which included an 8-year old head injury to the right side of his head which caused headaches and decreased visual acuity on his right side. 15. A DA Form 3082, dated 25 September 1975, shows the applicant acknowledged he underwent a separation medical examination more than 3 working days prior to his departure from place of separation and to the best of his knowledge, there had been no change to his medical condition since his last separation examination. 16. The applicant’s discharge packet is not in his available records for review. His DD Form 214 shows he was discharged on 11 November 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 15 (Misconduct – Desertion and AWOL) with separation program designator JKD (AWOL). He completed 4 years, 8 months, and 16 days of net active service this period with 2, 624 days of lost time. His service was characterized as UOTHC. 17. On 9 May 2011, he applied to the ABCMR, requesting an upgrade of his UOTHC discharge. On 14 December 2011, the Board denied his request, deeming his discharge both proper and equitable. 18. The applicant provided numerous letters from the VA, the most recent dated 24 July 2013, which states he should be eligible for VA medical treatment based on the completion of his first period of service, which was characterized as honorable. 19. On 8 February 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion, which states: a. A limited review of the applicant’s VA records through the Joint Legacy viewer shows he has not been granted a VA service-connected disability rating. His VA Problem Lists includes other sleep apnea, tobacco use, unspecified focal traumatic brain injury without loss of consciousness, PTSD, and recurrent, moderate major depressive disorder. He received cognitive processing therapy for PTSD from the Tucson VA in 2014 and claims he has had trouble with anger since his service in Vietnam. He has a large number of physical complaints that are being treated through the VA. b. At the time of his discharge, the applicant denied having typical PTSD symptoms and the available record does not support PTSD or another boardable behavioral health condition existed at the time of his discharge. The records show he did not fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). c. 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. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. The applicant was provided a copy of the advisory opinion and given an opportunity to respond, which he did on 21 March 2018. In his response, the applicant states: a. In 1966, while serving in Vietnam, he sustained a head injury. He recovered and did not report the need for further medical intervention at the time as he could not have known how this injury would affect him. TBI was not considered a diagnosis at the time. b. As we now know, TBI manifests itself differently in everyone. The VA established a system-wide screening and assessment procedure in 2007 to identify mild TBI in veterans as quickly as possible. The tool consists of questions the VA health care professionals must ask all veterans of the conflicts in Iraq and Afghanistan when they come in for care. Veterans who screen positive are offered follow-up evaluations with specialists. c. This is wonderful for the young men and women coming home with TBI and other conditions, but he was not granted this type of examination. To say that the injury to his head he sustained in combat in Vietnam caused no damage to his brain is unlikely. He knows that AWOL is a grave offense and he can understand that now after many years, medical treatment, and therapy. However, at the time of his separation, his decision- making skills were severely affected as a consequen[ce] of the TBI he suffered as a result of his combat injury, for which he was awarded the Purple Heart. d. His ultimate goal would be a favorable resolution to his application, allowing him to receive appropriate medical care for his exposure to Agent Orange, which he is currently unable to receive care for due to his discharge status. He was previously rejected for a discharge upgrade once before, but please asks for consideration based on his medical records, his statement, and his love for his country. 21. 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, 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. 22. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 23. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of AWOL or desertion. a. It states, when absentees were returned to military control from a status of AWOL or desertion, the commander exercising general court-martial jurisdiction was authorized to direct discharge, retention, convene an administrative discharge board, and approve the discharge but suspend execution. An individual may be considered for discharge under this section when the unauthorized absence was continuous for 1 year or longer and retention in the service was precluded by regulations or not considered desirable or in the best interest of the United States. An individual discharged under the provisions of this section will be furnished an Undesirable Discharge Certificate. b. It stated an honorable discharge was a separation with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty. c. A general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. d. An undesirable discharge was an administrative separation from the service under conditions other than honorable. It was issued for unfitness, misconduct, or security reasons. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found sufficient evidence to grant full relief and amend the Army Board for Correction of Military Records (ABCMR) decision of 14 December 2011. 1. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and the medical advisory opinion, and found the applicant’s statement that he was suffering from PTSD and TBI compelling despite the medical advisory opinion that there is insufficient evidence in the service medical record to support the existence of PTSD or another boardable behavioral health condition at the time of discharge. The Board found the applicant’s prior honorable service from March 1961 to December 1963, reenlistment and his tour in Vietnam prior to the mortar attack evidence of honorable service, with the misconduct that caused the discharge occurring subsequent to the mortar attack that inflicted the TBI. The applicant was awarded the Purple Heart Medal for “Wound Received in action” on 18 March 1967 and the DA Form 20 indicates that the applicant received a head wound on 16 March 1967. After being redeployed to the Medical Holding Company in El Paso, Texas, the applicant went AWOL. Therefore, the Board found that the discharge characterization was mitigated. 2. Regarding the applicant’s Purple Heart Medal, the Board found that the DD form 214 ending “75-11-11” erroneously omitted the applicant’s award. The applicant’s records include a copy of General Orders #36 awarding the applicant the Purple Heart Medal on 18 march 1967. 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 his DD Form 214 with effective date “75-11-11” by correcting: 1. item 9c (Authority and Reason) “AR 635-200, para 5-14, SPD JND”, vice “Chap 15 AR 635-200, SPD JKD,” 2. item 9e (Character of Service): “General Under Honorable Conditions” vice “Under Other Than Honorable Conditions,” 3. item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) as follows: add Purple Heart 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. 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, 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. 2. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 15 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of AWOL or desertion. a. It states, when absentees were returned to military control from a status of AWOL or desertion, the commander exercising general court-martial jurisdiction was authorized to direct discharge, retention, convene an administrative discharge board, and approve the discharge but suspend execution. An individual may be considered for discharge under this section when the unauthorized absence was continuous for 1 year or longer and retention in the service was precluded by regulations or not considered desirable or in the best interest of the United States. An individual discharged under the provisions of this section will be furnished an Undesirable Discharge Certificate. b. It stated an honorable discharge was a separation with honor. The issuance of an honorable discharge was conditioned upon proper military behavior and proficient and industrious performance of duty. c. A general discharge was a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge. d. An undesirable discharge was an administrative separation from the service under conditions other than honorable. It was issued for unfitness, misconduct, or security reasons. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000090 4 1