ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20180004254 COUNSEL REQUESTS: an upgrade of the applicant's under other than honorable conditions (UOTHC) discharge. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * The Veterans Consortium Pro Bono Program Agreement to engage an Attorney * 20-Page Brief * Clinical Record * Medical History * VA Form 21-4138 (Statement in Support of Claim) * Excerpts from Chapter 10 Discharge * Pre Hearing Review * Department of Veteran’s Administration’s (VA) Administrative Decision * Physicians Statement (Psychiatric Evaluation) * Relative’s Statement * Secretary of Defense Memorandums FACTS: 1. Counsel 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 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. Counsel states, in part: a. The applicant enlisted in the Army on 31 May 1967. On 30 August 1967, he was admitted to the Neuropsychiatric Service for observation of bizarre behavior. He was diagnosed with emotional instability reaction, chronic, severe. His predisposition was severe and impairment for military was deemed moderate. However, the psychiatrist stated the applicant was not mentally ill and psychiatrically cleared him for duty. In a November 1967, medical screening, the applicant indicated he suffered from depression and nervous troubles. b. The applicant was deployed to Vietnam in February of 1968, he was injured during an assault and was awarded the Purple Heart. When he returned home his nerves were shot and he could not get along with people very well, was jumpy, could not look at television or read the newspaper and would get angry easily. The applicant’s first tour in Vietnam was rated satisfactory and he received numerous awards. While on his second deployment to Vietnam in 1969, his father became critically ill and he was sent home on authorized leave. At the time, the applicant suffered from undiagnosed post-traumatic stress disorder (PTSD) secondary to trauma experienced in Vietnam. His issues, aggravated by his father's illness caused him to avoid returning to Vietnam. After being absent without leave (AWOL) for an extended period of time, the applicant requested an UOTHC discharge in lieu of court martial. The applicant's mental health conditions were a major contributing factor in the discharge. If it was not for his nervous symptoms, which were documented during service, and his father's health, the applicant would have completed his second deployment. c. In 1977, the Special Discharge Review Program upgraded the applicant's discharge to Honorable based on being wounded in action during his first satisfactory tour in Vietnam, completion of 24 months before discharge, and his age. However, the Army Discharge Review Board (ADRB) did not affirm the discharge. d. In 1978, VA determined the applicant's discharge was dishonorable for VA purposes and denied him benefits. In 2005, VA diagnosed the applicant with PTSD, related to traumas in Vietnam and Depressive Disorder. His current doctor diagnosed him with chronic PTSD, Major Depressive Disorder, and Panic Disorder. The applicant's PTSD affected his behavior, and caused him to remain AWOL, which directly led to his UOTHC discharge. e. In accordance with the 2014 Hagel Memorandum and 2017 Clarifying Guidance, the Board must Consider whether the applicant's mental health condition was a mitigating factor in his discharge. Due to the characterization of his discharge, the applicant has been denied critical medical treatment for his service-related mental health diagnosis for the past 45 years. In the interest of justice, the applicant respectfully request an upgrade of OUTHC discharge to a General, Under Honorable Conditions discharge by recognizing the contribution of his PTSD symptoms in his misconduct. Counsel's complete brief is available for the Board's review and consideration. 3. The applicant served in Vietnam from 17 November 1967 to 11 February 1969 and from 16 July 1969 to 22 December 1969. 4. The applicant accepted non-judicial punishment on 20 November 1968, for being absent from his place of duty. His punishment consisted of reduction in rank to the grade of private (E-2). 5. On 5 December 1972, the applicant was charged with 2 specifications of AWOL from 12 June 1970 to 17 November 1970 and 20 November 1970 to 3 December 1972. 6. On 14 December 1972, following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court- martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf 7. On 30 December 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an undesirable discharge certificate and reduced to the lowest enlisted grade of private (E-1). 8. The applicant's DD Form 214 shows he was discharged on 18 January 1973, for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 4 years, 9 months and 27 days of active service with 1,029 days lost. His record also shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Meal * Overseas Bar (2) * Purple Heart 9. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 10. On 12 July 1977, the applicant was informed his application for consideration under the SDRP had been examined and his UOTHC discharge had been upgraded to Honorable. He was issued a new DD Form 214 showing the change of his character of service. 11. On 3 August 1978, ADRB informed the applicant his discharge could not be affirmed. 12. On 8 May 2018, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, a review of the available documentation found just enough 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 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. 13. On 10 May 2018, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include two tours in Vietnam, his wounding and award of a Purple Heart, the frequency and nature of his misconduct, the charges against him, the behavioral health assessment, his request for discharge and the reason for his separation. The Board considered the applicant’s upgrade under SRDP and the subsequent denial to affirm that upgrade. The Board considered the review and conclusions of the medical advising official and agreed there was sufficient evidence of in-service mitigation to overcome the applicant’s misconduct and that liberal consideration should be applied. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be corrected. 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: 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 the DD form 214 for the period of service ending 18 January 1973 to reflect in item 13 a. (Character of Service) – “Honorable” vice “Under other than honorable conditions.” 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. 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, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 4. Public Law 95-126 was enacted in October 1978. This legislation: a. Denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. b. Required the Service Departments to establish historically-consistent uniform standards for discharge reviews. c. Required the Service Departments to reconsider all discharges previously upgraded under the DoD SDRP using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 5. 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 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. 6. 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to 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 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 9. AR 635-40, establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. ABCMR Record of Proceedings (cont) AR20180004254 7 1