IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20180002690 APPLICANT REQUESTS: an upgrade of his discharge under conditions other than honorable to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, section 1552), with attached statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * U.S. Senate Privacy Act Consent Form, dated 24 January 2018 * Letter, President, Chapter 955, Vietnam Veterans of America, dated 5 February 2018 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Presidential Proclamation 4313, dated 16 September 1974, announced a program for the return of Vietnam era draft evaders and military deserters, known as a clemency discharge, upon the following terms and conditions: a. A member of the Armed Forces who has been administratively classified as a deserter by reason of unauthorized absence and whose absence commenced during the period 4 August 1964 to 28 March 1973, inclusive, will be relieved of prosecution and punishment under Articles 85, 86 and 87 of the Uniform Code of Military Justice (UCMJ) for such absence and for offenses directly related thereto if he takes an oath of allegiance to the United States before 31 January 1975 and executes an agreement with the Secretary of the Military Department from which he absented himself, pledging to fulfill a period of alternate service under the auspices of the Director of Selective Service. The alternate service shall promote the national health, safety, or interest. b. The period of service shall be 24 months, which may be reduced by the Secretary of the appropriate Military Department because of mitigating circumstances. c. However, if a member of the Armed Forces has additional outstanding charges pending against him under the UCMJ, his eligibility to participate in this program may be conditioned upon or postponed until after final disposition of the additional charges has been reached in accordance with law. d. Each member of the Armed Forces who elects to seek relief through this program will receive an undesirable discharge. Thereafter, upon satisfactory completion of a period of alternate service prescribed by the Military Department, such individual will be entitled to receive a clemency discharge in recognition of his fulfillment of the requirements of the program. Such clemency discharge shall not bestow entitlement to benefits administered by the Department of Veterans Affairs. e. The clemency discharge is a neutral discharge, neither honorable nor less than honorable. It does not effect a change in the characterization of the individual's military service as having been under other than honorable conditions, nor does it serve to change, seal, erase or in any way modify the individual's past military record. Therefore, if the underlying discharge was issued as a result of a general court-martial, the issuance of a clemency discharge does not subject the underlying characterization to review under Title 10, U.S. Code, section 1553. Clemency discharges are issued by the Commander, Naval Military Personnel Command, or the Commandant of the Marine Corps when an individual has met the requirements of the Presidential Proclamation. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and Undesirable Discharge Certificates. a. Paragraph 1-9e (General Discharge) stated a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 1-9f (Undesirable Discharge) stated an undesirable discharge is an administrative separation from the service under conditions other than honorable. It may be issued for unfitness or misconduct. c. Chapter 10 (Discharge for the Good of the Service) stated an individual who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, United States, 1969, includes a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. If warranted, however, the discharge authority could direct an honorable or general discharge. 4. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Paragraph 7-64c provided that upon determination by the general court-martial authority that an individual is to be discharged from service under other than honorable conditions, individual will be reduced to the lowest enlisted grade. 5. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added post-traumatic stress disorder (PTSD) to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 6. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 7. On 3 September 2014 in view of the foregoing information, 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 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 applicants' service. 8. 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. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, 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. The applicant states he believes he developed PTSD during his 12-month tour of duty in the Republic of Vietnam. a. He was 19 years old when he enlisted. b. Numerous times while serving on perimeter guard duty he came under fire from snipers and mortar fire. On more than on occasion the ammunition bunker nearest him exploded, causing injury and death to his fellow Soldiers. He had great difficulty coping with this. c. Upon his return to the United States, he did not adjust well to his assignments. He often got into trouble and was not provided any mental health assistance, either in Vietnam or when he returned to the United States. He knew from the time he returned to the United States that he was suffering from some type of mental health condition. 3. He enlisted in the Regular Army on 20 January 1969 at 19 years of age (2 months prior to his 20th birthday). 4. He completed basic training and advanced individual training, and was awarded military occupational specialty 68B (Aircraft Turbine Engine Repairman). 5. He was assigned to the 271st Aviation Company, U.S. Army Pacific, Republic of Vietnam, on 17 July 1969. 6. He departed Vietnam on 9 July 1970 en route to the United States. 7. On 4 May 1970, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty without authority, to wit: 271st Aviation Company (Assault Support Helicopter) Hanger on or about 1300 hours, 28 April 1970. His punishment consisted of reduction in rank/grade from specialist four/E-4 to private first class/E-3. 8. He was assigned to Troop B, 6th Squadron, 1st Calvary Regiment, 2d Armored Division, Fort Hood, TX, on 20 August 1970. 9. On 5 February 1971, he received nonjudicial punishment under the provisions of Article 15, UCMJ, for having knowledge of a lawful order issued by a commissioned officer to report to the S-3 in preparation for Reconnaissance, Commando, and Doughboy School at Troop B, 2d Squadron, 1st Cavalry Regiment, 2d Armored Division, Fort Hood, TX, an order which was his duty to obey, and failing to obey the same. His punishment consisted of reduction in rank/grade to private first class/E-3 and forfeiture of $100.00 pay for 1 month. 10. The DD Form 458 (Charge Sheet), dated 14 December 1971, shows court-martial charges were preferred against him for: * specification 1 – absenting himself from his unit without authority on or about 4 August 1971 and remaining so absent until on or about 19 August 1971 (15 days) * specification 2 – absenting himself from his unit without authority on or about 3 September 1971 and remaining so absent until on or about 30 November 1971 (88 days) 11. The DA Form 553 (Deserter Wanted by the Armed Forces), dated 12 January 1972, shows he was reported absent on or about 0700 hours on 27 December 1971 and was dropped from the unit rolls on 28 December 1971. 12. U.S. Army Personnel Control Facility, Fort George G. Meade, MD, Special Orders Number 43, dated 2 March 1972, state he surrendered to military authorities on 29 February 1972. He was transferred to the Personnel Control Facility on 1 March 1972 and confined in the Post Stockade. 13. On 6 March 1972, he voluntarily requested discharge in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200, chapter 10. a. Prior to completing the form, he acknowledged he had been afforded the opportunity to consult with counsel who fully advised him of the basis for the contemplated trial by court-martial and the rights available to him. b. He understood that if his request for discharge were accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and he would be deprived of many or all Army benefits as a veteran as a result of the issuance of such a discharge. He also understood he might expect to encounter substantial prejudice civilian life by reason of an undesirable discharge. c. He elected not to submit statements in his own behalf. 14. His complete discharge packet is not available for review. 15. His Standard Form 88 (Report of Medical Examination), dated 13 March 1972, shows the examining physician noted no medical defects or diagnoses and determined he was qualified for separation. 16. On 30 March 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 8 months, and 5 days of net active service with 176 days of lost time. His service was characterized as under other than honorable conditions. His DD Form 214 shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * two overseas service bars 17. His DD Form 215, dated 26 January 1976, corrected his DD Form 214 for the period ending 30 March 1972 by adding the following entry to item 30 (Remarks): "DD [Form] 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation No [Number] 4313" 18. The letter from the President, Chapter 955, Vietnam Veterans of America, dated 5 February 2018, states he is assisting the applicant with his request to upgrade his discharge so he can qualify to file a Department of Veterans Affairs claim. a. The applicant is presently receiving some medical care from the Department of Veterans Affairs; however, expanded services would be helpful, if not critical, in the future. The applicant currently has numerous medical conditions. b. The applicant received a discharge under conditions other than honorable on 30 March 1972. On 26 January 1976, the applicant received a correction to his DD Form 214 that grants him clemency with regard to his discharge. c. He requested an upgrade of the applicant's discharge to general under honorable conditions. A discharge upgrade would enable the applicant to be buried in the county veterans' cemetery. 19. His service records are void of a diagnosis of PTSD and he provided no medical evidence in support of his claim. 20. The Agency psychiatrist was asked to review this request. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Conditions Other Than Honorable (UCOTH) discharge (multiple incidents of AWOL) was due to PTSD he developed as a result of experiencing combat while deployed to Vietnam. Documentation reviewed included the applicant’s ABCMR application and personal statement, his military separation documentation and the VA electronic medical record (JLV). The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s period of service. No hard copy military medical records or civilian medical documentation was provided for review. a. Review of the applicant’s military records indicates that he deployed to the Republic of Vietnam from July 1969 to July 1970. His DD214 indicates the following periods of lost time: 4 Aug-9 Aug 1971; 3 Sep-30 Nov 1971; 1 Dec-7 Dec 1971 and 27 Dec 1971-28 Feb 1982. b. Medically related separation paperwork includes the following; an SF 93, Report of Medical History, dated 13 March 1972 and completed by the applicant. This document indicates that the applicant replied “Yes” to the following Behavioral Health (BH)-related queries: “Have you ever had or have you now: Frequent trouble sleeping? Depression or excessive worry? Nervous trouble of any sort?” and “No” to “Nervous trouble of any sort?” Applicant’s separation SF 88, Report of Medical Examination, documents that the applicant was qualified for separation. His PULHES was 1 1 1 1 1 1 with a psychological profile of S-1 (no psychological impairment). There is no indication in the available military records that the applicant failed to meet military medical retention standards IAW AR 40-501. c. Review of the VA electronic medical record (JLV) indicates that the applicant has received the following Behavioral Health (BH) diagnoses from the VA: Polysubstance Abuse; Nondependent Alcohol Abuse. No BH-related documentation was found in the VA electronic medical record. d. After reviewing the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychiatrist that there is insufficient evidence to support the applicant’s contention that combat-related PTSD led to the misconduct which resulted in his UCOTH discharge. The only BH documentation found in his available records his separation SF 93, Report of Medical History” in which he answers “Yes” to the queries: “Have you ever had or have you now: Frequent trouble sleeping? Depression or excessive worry? Nervous trouble of any sort?” Endorsement of these general BH symptoms alone does not establish the presence of any major Behavioral Health condition to include PTSD. Without further medical documentation, no recommendation regarding medical mitigation can be made. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002690 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1