ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 January 2021 DOCKET NUMBER: AR20180003827 APPLICANT REQUESTS: an upgrade of his general discharge under honorable conditions to honorable. 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) * Department of Veterans Affairs (VA) Form 10-5345 (Request for and Authorization to Release Health Information), dated 29 January 2018 * VA Medical Records 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d stated an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e stated a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Chapter 10 provides that a Soldier who has committed an offense or offenses, the punishment for any of which under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial,1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The request may be submitted at any time after court-martial charges are preferred, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the service. 3. 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 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 applicants' service. 4. 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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 based on 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 suffered from undiagnosed PTSD at the time of his discharge. 3. He enlisted in the Regular Army on 22 July 1968 for a period of 3 years. 4. He was assigned to Vietnam effective 27 December 1968. 5. He was honorably discharged on 21 April 1969 for the purpose of immediate reenlistment. He completed 9 months of active service during his period. 6. He reenlisted on 22 April 1969 for a period of 3 years. 7. He departed Vietnam en route to the continental United States effective 16 July 1970. 8. He was again assigned to Vietnam effective 11 November 1970. 9. He departed Vietnam en route to the continental United States effective 7 November 1971. 10. A memorandum from his company commander, dated 14 November 1972, states he had been counseled for several infractions, including: * returning late from weekends on more than one occasion * using an unauthorized meal card * demonstrating poor duty performance on many occasions * writing a bad check in the amount of $130.00 * several letters of indebtedness for failing to pay his civilian debts 11. On 21 November 1972, nonjudicial punishment was imposed against him under the provisions of Article 15, UCMJ, for being absent from his unit without authority from 31 October 1972 to 13 November 1972. His punishment included reduction in rank/grade to specialist four/E-4, forfeiture of $150.00 pay per month for 2 months, and 14 days of restriction and extra duty. He did not appeal and did not submit additional matters in his own behalf. 12. Headquarters, 79th Transportation Battalion (Terminal), Special Orders Number 129, dated 27 November 1972, reduced him to the rank/grade of specialist four/E-4 effective 22 November 1972. 13. A DD Form 458 (Charge Sheet), dated 24 October 1973, shows court-martial charges were preferred against him for being absent from his unit without authority from 31 March 1973 to 19 October 1973. He was not offered nonjudicial punishment under the provisions of Article 15, UCMJ. 14. On 25 October 1973, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He consulted with counsel and was advised of the implications attached to his request for discharge. He submitted a statement in his own behalf. He acknowledged: * he understood that if his discharge request were accepted, he could be discharged under other than honorable conditions with an undesirable discharge * he could be deprived of many or all Army benefits and could be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life 15. On 25 October 1973, he stated he felt severe discontent for the Army and he felt he would no longer be of any value to himself or the Army. In his present frame of mind, he felt it would be a waste of time and money to try to rehabilitate him. The type of discharge he would receive would be irrelevant to him because his civilian employer did not care about his military service record. Since his previous commander misrepresented his approval for a medical discharge, he knew remaining in the Army would result in his continued unauthorized absences. 16. The indorsement from the Commander, Company A, U.S. Army Personnel Control Facility, dated 25 October 1973, subject: Request for Discharge under the Provisions of Chapter 10, Army Regulation 635-200, recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of a General Discharge Certificate. He opined the applicant had no motivation for continued service and would not respond to counseling or rehabilitation. The applicant was medically examined and was found qualified for separation. There did not appear to be any reasonable grounds to believe the applicant is or was mentally defective, deranged, or abnormal at the time of his misconduct. 17. The indorsement from the Commander, U.S. Army Personnel Control Facility, dated 15 November 1973, subject: Request for Discharge under the Provisions of Chapter 10, Army Regulation 635-200, recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of a general discharge. He also recommended return of the applicant’s case for court-martial if the request for discharge is denied. 18. The indorsement from the Commander, Headquarters, U.S. Army Training Center and Fort Dix, dated 20 November 1973, subject: Request for Discharge under the Provisions of Chapter 10, Army Regulation 635-200, approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of a General Discharge Certificate. 19. On 10 December 1973, 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, 7 months, and 20 days of net active service during this period with 215 days of lost time. His service was characterized as general under honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he was awarded or authorized the: * National Defense Service Medal * Combat Medical Badge * Army Commendation Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * four overseas service bars * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) 20. His VA medical records show he attended weekly PTSD group therapy treatment in 1998 and 1999 for depression, anxiety, suicidal ideation, lowered self-esteem, sleep disturbance, flashbacks, and intrusive thoughts of traumatic Vietnam experiences. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. A review of VA’s Joint Legacy Viewer (JLV) indicates the applicant has been diagnosed and received treatment for PTSD. He has a service connected disability rating of 70% for PTSD. There is documentation to support a behavioral health condition at the time of his discharge. He met retention standards at the time of his discharge. PTSD is a mitigating factor for the court-martial charge for being absent without leave. PTSD is not a mitigating factor for writing a bad check, having an unauthorized meal card, or failure to pay his civilian debts. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, 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 ARBA Medical Advisor. 2. The Board found sufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, the Board determined the applicant's character of service should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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 reissuing his DD Form 214 for the period ending 10 December 1973 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003827 7 1