IN THE CASE OF:   

BOARD DATE:  31 July 2020 

DOCKET NUMBER:  AR20180004183 


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions promulgated in Dockets Number AR2004101630 and AR20100008404, on 16 September 2004 and 26 August 2010, respectively.  Specifically, he requests: 

.

. his under other than honorable conditions (UOTHC) discharge be upgraded toeither an under honorable conditions (general) discharge or an honorabledischargecorrection of his DD Form 214 (Armed Forces of the United States Report ofTransfer or Discharge), for the period ending 16 June 1972, to show his servicein the Republic of Vietnam




APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated on or about 7 February 2018

.Counsel Letter, Subject: Request for Reconsideration to the Army Board ofCorrections for Military Records (ABCMR), dated 7 February 2018

.Letter Orders Number 1-309, issued by Headquarters, U.S. Army SupportCommand, Saigon on 11 January 1972

.Chain of Command Endorsements, Request for Discharge for the Good of theService

.DD Form 214, for the period ending 16 June 1972

.Administrative Decision, Veterans Administration Regional Office, St. Louis, MO,dated 21 January 1977

.ABCMR Record of Proceedings, Docket Number AR2004101630, Board date16 September 2004

.Two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Supportof Claim), dated 1 April 2010 and 21 April 2010

.ABCMR Record of Proceedings, Docket Number AR20100008404, Board date26 August 2010

.DD Form 215 (Correction of DD Form 214, Certificate of Release or Dischargefrom Active Duty), dated 16 December 2010


.Privacy Act Release Form from the Office of his Member of Congress

.Self-authored statement to the VA

.Letter from the VA Regional Office, St. Louis, MO, dated 14 December 2011

.Initial Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire(DBQ), and Medical Opinion DBQ, printed on 25 May 2016



FACTS: 

1.Incorporated herein by reference are military records that were summarized in theprevious consideration of the applicant's case by the ABCMR in Dockets NumberAR2004101630 and AR20100008404, on 16 September 2004 and 26 August 2010,respectively.

2.The applicant states, in effect, his DD Form 214 does not indicate he served inVietnam.  His type of discharge resulted from going absent without leave (AWOL) afterbeing exposed to the violence in Vietnam, which was unfair.  He was a young man andthought he could handle the Army life while he was in Vietnam; he was scaredconstantly and his mental state was not good.  He has suffered for years with AgentOrange, Type II Diabetes, and Hepatitis C, which he feels he contracted in Vietnam.His mental state has been so messed up since Vietnam.  He is submitting a claim to theVA regarding his disabilities.

3.Counsel states:

a.[The applicant] served on active duty in the U.S. Army from January 1971 to June1972, including service in Vietnam that earned him two bronze [service] stars along with other honors.  His DD Form 214 is enclosed.  As the ABCMR 2010 Record of Proceedings states, [Applicant] arrived in Vietnam on 25 July 1971 and was granted  30 days' emergency leave on 11 January 1972 to visit his mother, who was ill.  Your office's 2010 decision granted "full relief" to [Applicant] by correcting his record to show his Vietnam service and Vietnam era campaign medals. However, [Applicant] also requested an upgrade of his discharge, so the 2010 decision is not full relief.  He is requesting an upgrade to either general or honorable, based on his PTSD that caused the behavior that resulted in his discharge. 

b.On 16 June 1972, after requesting a discharge in lieu of trial by court-martial,[Applicant] received a UOTHC discharge.  He was pending trial for a period of AWOL service totaling 60 days, and he'd been AWOL previously for a period of 39 days.  On 21 January 1977, the VA decided (copy attached) that [Applicant]'s discharge was "a bar to VA benefits" because "there is no evidence to indicate that the Veteran was unable to distinguish right and wrong" when he went AWOL, which they considered "willful and persistent misconduct."  In a 2011 decision (copy attached), the VA Regional Office in St. Louis denied [Applicant]'s request for VA benefits because "there is no 
evidence to show that at the time of the misconduct [two periods of AWOL], the Veteran was mentally defective and unable to distinguish right from wrong."  Included also is a 2011 statement from the Veteran, who wrote that he went AWOL because he'd had severely traumatic experiences in Vietnam and was "scared." 

c.[Applicant], a decorated combat veteran with a current diagnosis of PTSD andevidence of traumatic experiences in Vietnam prior to being discharged, due to behavior clearly connected to PTSD, now requests reconsideration by the ABCMR of his discharge on the basis that his conduct in service resulted from PTSD he suffered because of his combat experience in Vietnam.   

d.The Secretary's Memorandum provides that in cases where "any document fromthe period of service substantiates the existence of one or more symptoms of which is now recognized as PTSD or a PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service."  The memorandum further provides that "potentially mitigating evidence of the existence of 
un-diagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct."  Finally, time limits for reconsideration will be liberally waived. 

e.[Applicant] submits that this new medical evidence warrants favorablereconsideration of the character of his service.  PTSD due to combat service was responsible for his conduct and because of this, a discharge upgrade is warranted. 

4.The applicant enlisted in the Regular Army on 21 January 1971.

5.The applicant’s record is not available for review to determine the specific facts andcircumstances surrounding his discharge processing.  However, his DD Form 214shows he was discharged on 16 June 1972, under the provisions of Army Regulation635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of theservice – in lieu of court-martial.  He was credited with one year, one month, and 18days of net active military service.  He accrued a total of 99 days of lost time due toAWOL, and his service was characterized as UOTHC.

6.The applicant petitioned the Army Discharge Review Board (ADRB) for a dischargeupgrade.  The ADRB considered the applicant's petition on 3 May 1979, determined that
he was properly and equitably discharged, and denied his petition for relief.

7.The applicant petitioned the ABCMR for an upgrade to his service characterization.The ABCMR considered his request on 16 September 2004, determined he wasproperly discharged, and denied his petition for relief.

8.The applicant petitioned the ABCMR for an upgrade to his service characterizationand correction to his DD Form 214 to show his service in Vietnam.  The ABCMRconsidered his request on 26 August 2010, determined he was properly discharged,and denied his request for an upgrade of his discharge.  The Board determined that theevidence presented was sufficient to warrant a recommendation for partial relief.  As aresult, the Board recommended that all Department of the Army records of the individualconcerned be corrected to shows his service in the Republic of Vietnam.

9.Accordingly, a DD Form 215 was issued on 16 December 2010, which corrected theapplicant's previously issued DD Form 214 to show his service in Vietnam andassociated awards and decorations.

10.The applicant provides his VA DBQ and Medical Opinion, printed on 25 May 2016,which shows he has a current diagnoses of PTSD and Traumatic Brain Injury (TBI).

11.The applicant is currently applying to the ABCMR requesting discharge upgradecontending that the misconduct leading to his Under Other Than Honorable Conditionsdischarge (UOTHC) was due to Post Traumatic Stress Disorder (PTSD) he developedwhile serving in combat in Vietnam.  The Agency psychiatrist was asked by the ABCMRto review this case. Documentation reviewed includes the applicant’s completed DD149and supporting documentation and the electronic VA medical record (JLV). The militaryelectronic medical record (AHLTA) was not reviewed as it was not in use during theapplicant’s period of service. No hard copy military medical records were provided forreview.  The applicant’s military records indicate he was deployed to the Republic ofVietnam from 25 Jan 1971 to 13 June 1971.  Review of the applicant’s DD214 indicatesthat on 16 June 1972, he was separated from the Army with an UOTHC discharge IAWAR 635-200, Chapter 10: For the Good of the Service-In Lieu of Trial by Court Martial.His misconduct consisted of being Absent without Leave (AWOL) on two separateoccasions: 13 June to 21 July 1971 and 17 March to 15 May 1972, respectively.Review of the VA electronic medical record (Joint Legacy Viewer-JLV) indicates that theapplicant has been diagnosed with PTSD; Panic Disorder; Major Depressive Disorder,recurrent, moderate. He was formally diagnosed with combat-related PTSD in May2016 during a VA Compensation and Pension Evaluation. He presented to the VA toestablish care in August 2016. At this time, he reported that he had had problems withPTSD since returning from Vietnam. He did not seek out Behavioral Health services forfear that others would think he was crazy. He reported a long history of traumasymptoms: intrusive thoughts, nightmares, avoidance behaviors, increased irritability,over-reactivity, poor sleep and poor concentration. He also reported depressivesymptoms. He denied any history of military sexual trauma.  Based on the availableinformation and in accordance with the Liberal Consideration guidance, it is the opinionof the Agency psychiatrist that the applicant has a mitigating Behavioral Healthcondition, PTSD. As there is an association between PTSD and avoidance behaviors,
there is a nexus between the applicant’s diagnosis of PTSD and his two incidents of absenting himself without leave. 

12.The Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance

BOARD DISCUSSION: 

After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief to upgrade the applicant’s discharge characterization to general under honorable conditions.  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 wartime service and PTSD mitigated the applicant’s misconduct.  The Board found insufficient evidence to grant the applicant a full honorable discharge because the applicant’s statement at the time of separation indicates that he blamed his mother’s health for his two periods of AWOL totaling 99 days and not PTSD.  Furthermore, the Board found insufficient evidence to correct the applicant’s DD Form 214 to reflect his service in Vietnam because the applicant was previously issued a DD Form 215 to reflect this. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : 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 partial relief.   



1.As a result, the Board recommends that all Department of the Army records of theindividual concerned be corrected by changing the discharge characterization of serviceon his DD Form 214 to General under Honorable Conditions.2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to adding foreign service to his records.


XJohnny F. Thomas, Jr.


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.  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.  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.   
 
 c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 
 
3.  The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 
 
4.  The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum].  The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment.  Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable 
opportunity for relief even if the mental health condition was not diagnosed until years later.  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. 
 
 a.  Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 
 
 b.  An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 
 
 c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 
 
5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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.   
 
 a.  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 on the basis of equity, injustice, or clemency grounds, Boards 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.   
 
 b.  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. 
 
//NOTHING FOLLOWS//