ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20180000389 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Naval Personnel (NAVPERS) Form 1650/65 (Transmittal of and/or Entitlement to Awards) * Bronze Star Medal Certificate * one-page Department of Veterans Affairs (VA) medical document 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. 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 AC94-08946 on 7 September 1994. 3. The applicant states: a. He was a good Marine and a Soldier and he feels that if he had received the medical attention he needed at the time, he would not have received the bad discharge. It bothers and depresses him that after all the years and service, he should have been given at the very worst a general or medical discharge. He would appreciate the Board’s time and effort to correct this wrong. He is not the only veteran that was given an unjust discharge due to post traumatic stress disorder (PTSD). b. When he got back from his second tour of Vietnam, he was stationed at Fort Hood, Texas. His wife and children lived in She was going to file for a divorce. He had leave time on the books so he asked for leave to try to save his marriage but his request was denied by the company first sergeant. He left anyway and was gone for seven days. He came back on his own and was given a battalion Article 15 and reduced in rank from a sergeant to E-4. That made him even more depressed and upset, so he went absent without leave (AWOL) again. He came back again on his own and was put in the stockade. He was told by a legal specialist that if he wanted out of there he could request a general discharge. He had been in the stockade for eight or nine weeks. He was given a statement to sign. He has an 8th grade education and was very confused and depressed. He really did not know what he was signing. He did not even know what many of the words meant. c. He was transferred to a holding barracks and they told him that since he lived in Dallas, Texas, he could go home and they would mail him his discharge. He was expecting a general discharge. When it came in the mail, he was shocked to find it was an undesirable discharge. d. He had a perfect service record in the Marine Corps and during his first enlistment in the Army. He had done two tours in Vietnam and was having flashbacks after his first one. He was diagnosed with PTSD and he is being treated at the VA hospital since 1983. That was when he was admitted for severe depression after trying to commit suicide. He is totally and permanently disabled. e. He deals with suicidal thoughts and flashbacks almost daily as well as being nervous, super easily startled, overly irritable, having an explosive temper, and paranoia. He stays awake during night time and sleeps only after his wife wakes up. The doctor said he is on guard duty to protect them and their home. These things led to numerous fights and altercations with others. He has been married four times and he could not keep a job. He changed jobs 20 to 30 times before he was declared unable to work. f. He has a skin condition that has been passed on to his two children. A VA dermatologist could not say what it is, but he has seen other veterans at the VA that have the same thing and they were told it is from Agent Orange. He had two lip cancers removed as well as two benign tumors removed. He also had a five-way cardiac bypass surgery, he has type II diabetes, arthritis, and degenerative bone disease. Why didn't the Army give him medical and psychological testing? It is obvious that something was really wrong for him to have jeopardized his military career. g. He earned the Bronze Star Medal, Army Commendation Medal, three stars on his service ribbon, Good Conduct Medal, Presidential Unit Citation, and all traditional combat ribbons, in the Marine Corps and in the Army. He graduated from the 7th Army Noncommissioned Officer Academy in Germany, Combat Infantry Squad Leader School, Mechanized Squad Leader School, and Tactics for Marine Infantry School. 4. The applicant's records show he served on active duty in the U.S. Marine Corps (USMC) from 20 April 1964 to 19 April 1968. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he was honorably released from active and transferred to the USMC Reserve. The DD Form 214 also shows he served in Vietnam during this period of active duty and that his awards include the Vietnam Service Medal with three bronze service stars. 5. The applicant enlisted in the Regular Army on 10 April 1969 in pay grade E-4. He was promoted to the rank and grade of sergeant (SGT)/E-5 on 4 October 1969. He arrived in Vietnam for his second tour of duty there on or around 2 September 1970. While in Vietnam, he reenlisted on 11 January 1971 for "present duty assignment" reenlistment option. 6. The applicant's DA Form 20 (Enlisted Qualification Record) shows he departed Vietnam on 29 August 1971 and was reassigned to Fort Hood, TX. 7. The applicant's records contain orders showing he was awarded the Combat Infantryman Badge, Army Commendation Medal, and the Bronze Star Medal for service during his second tour of duty in Vietnam. 8. The applicant's DA Form 20 shows he was absent without leave (AWOL) from 5 to 11 June 1972. 9. Orders issued on 14 July 1972 show the applicant was reduced to the rank of specialist four, effective 5 July 1972, as a result of receiving nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for misconduct. 10. The applicant's DA Form 20 shows he again departed AWOL on 5 September 1972 and that he remained AWOL until 23 October 1972. 11. On 27 October 1972, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to the discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 12. The applicant's legal counsel stated the following: Having been advised by me that the basis for this contemplated court-martial is an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge under the UCMJ and the Manual for Courts-Martial, 1969 (Revised) and having further been advised of the effects of this request for discharge upon the rights available to him, [the applicant] personally made the choices indicated in the foregoing request for discharge. [The applicant] has also been advised that charges in this case have not been referred to trial by a court-martial which could adjudge a punitive discharge, but that he nevertheless may submit this request for discharge. 13. Orders issued on 11 December 1972 directed the applicant's discharge under the authority of Army Regulation 635-200, chapter 10. 14. The applicant's DD Form 214 confirms he was discharged on 13 December 1972, in the rank of private/E-1, with his service characterized as under conditions other than honorable. 15. The applicant provided a one-page Department of Veterans Affairs (VA) medical document showing he was diagnosed with PTSD. 16. On 25 April 2018, the Army Review Boards Agency psychologist/medical advisor provided an advisory opinion. The advisory found the available documentation showed sufficient evidence of a medical disability or condition (based on Liberal Consideration, not actual clinical evidence) 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 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. 17. The applicant was provided a copy of the advisory opinion on 27 April 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully consider 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 his previous service, his two tours in Vietnam, the frequency and nature of his misconduct, his PTSD diagnosis, the conclusions of the advising official that his conditions were mitigating and application of liberal consideration guidance. The Board determined that liberal consideration applies and the applicant’s discharge should be upgraded. The Board concurs with the administrative corrections annotated 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 corrections shown in the Administrative Note(s) 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 amending his DD Form 214 for the period ending 13 December 1972 to show his character 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): 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 with three bronze service stars during his service in the USMC; however, he participated in two additional campaigns during his second tour of duty in Vietnam (Vietnamese Counteroffensive Phase VII (1 July 1970 - 30 June 1971) and Consolidation I (1 July 1971 - 30 November 1971)). Therefore, his DD Form 214 for the period ending 13 December 1972 should be amended by deleting the entry in block 13 that reads "1 Bronze Service Star to Vietnam Service Medal" and by adding the: * Bronze Star Medal * Army Commendation Medal * Combat Infantryman Badge * Vietnam Service Medal with one silver service star * 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. 2. 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 applicant's service. ABCMR Record of Proceedings (cont) AR20180000389 6 1