IN THE CASE OF: BOARD DATE: 20 April 2020 DOCKET NUMBER: AR20180005581 APPLICANT, THE WIDOW OF A DECEASED FORMER SERVICE MEMBER (FSM) REQUESTS: reinstatement of the FSM’s rank/grade to sergeant first class (SFC)/E-7 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 8-275-3 (Clinical Record Cover Sheet), dated 28 December 1970 * DD Form 602 (Patient Evacuation Tag), dated 6 January 1971 * Headquarters Command, U.S. Army School/Training Center and Fort Gordon Special Court-Martial Order Number 183, dated 11 March 1971 * DA Form 3647-1 (Clinical Record Cover Sheet), dated 13 March 1971 * DD Form 1300 (Report of Casualty), dated 18 May 1971 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 she wishes to reinstate her deceased husband’s rank/grade to SFC/E-7. She believes the record to be unjust because of her husband’s mental state at the time. He was medically evacuated from Vietnam to Fort Gordon, GA, with what is known today as post-traumatic stress disorder (PTSD). She has been living with this since her husband’s death. She feels he died for his country and deserves to have his rank reinstated. 3. The FSM initially enlisted in the Regular Army on 2 March 1953 and served honorably through three subsequent consecutive reenlistments, with his final reenlistment taking place on 12 August 1965. 4. His DA Form 20 (Enlisted Qualification Record) shows the FSM served two tours in Vietnam, from 12 April 1967 through 20 February 1968 and again from 10 March 1970 through 10 January 1971. 5. A Clinical Record Cover Sheet shows the applicant was admitted to the 93rd Evacuation Hospital in Vietnam on 24 December 1970 and was discharged on 28 December 1970. While hospitalized he was diagnosed with the following line of duty (LOD) conditions: * chronic brain syndrome * tobacco alcohol amblyopia (decreased eyesight due to abnormal visual development) * mild hypertension * acne of back 6. A Patient Evacuation Tag shows he was medically evacuated to the U.S. Army Hospital, Fort Gordon, GA, on 6 January 1971 with a diagnosis of gross stress reaction. 7. Clinical Records show: a. The FSM was admitted to the U.S. Army Hospital at Fort Gordon, GA, on 10 January 1971 with an acute gross stress reaction with some depression which was treated. During his workup on the Psychiatric Ward, it was noted he had decreased vision and was therefore transferred to the Ophthalmology Department. His history with regard to his eye complaint dated back to 6 months prior when he was in Vietnam and smoked approximately 20 cigars per day. His visual acuity decreased to 20/200 in the left eye. b. He was diagnosed with: * gross stress reaction, acute, moderate, manifested by agitation, paranoid ideation and some depression; severe stress of impairment of vision; treated and in remission; Line of Duty (LOD): yes * amblyopia, tobacco; LOD: yes c. He went on ordinary leave from 22 – 29 January 1971, was absent without leave (AWOL) from 2 - 10 February 1971, and was dropped from the hospital rolls on 11 February 1971. 8. Headquarters Command, U.S. Army School/Training Center and Fort Gordon Special Court-Martial Order Number 183, dated 11 March 1971, shows the FSM was arraigned and tried by special court-martial, where he was charged with and found guilty of being AWOL from the U.S. Army Hospital Specialized Treatment Center from on or about 1 February 1971 until on or about 24 February 1971. 9. On 8 March he was sentenced to reduction in rank/grade to staff sergeant (SSG)/E-6 and restriction to the limits of Fort Gordon, GA for 30 days. He had no previous convictions. 10. Headquarters, U.S Army medical Department Activity Special Orders Number 48, dated 10 March 1971, reassigned the applicant to Fort Hood, TX with a reporting date of 4 April 1971 and 20 days delay enroute authorized for leave plus 3 days travel time. 11. On 11 March 1971, the sentence was approved and would be duly executed, but the execution of that portion pertaining to restriction to the limits of Fort Gordon, BA for 30 days was suspended until 8 September 1971, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. 12. A Police Report, dated 13 March 1971 shows while he was home on leave from the Army, the FSM committed suicide in the dining room of his home by placing a 22 caliber revolver in his mouth and shooting once. 13. A Report of Casualty prepared on 23 March 1971, states the FSM died on 13 March 1971 in, as a result of an apparent self-inflicted, non-battle, gunshot wound. 14. On 24 March 1971, the Office of the Coroner certified that the investigation into the death of the FSM resulted from a self-inflicted gunshot wound, a suicide. A Criminal Investigation Division Report of Investigation, dated 26 March 1971, confirmed the FSM’s death was the result of suicide. 15. A DD Form 261 (Report of Investigation – Line of Duty (LOD) and Misconduct Status), dated 9 April 1971, shows the applicant died of a self-inflicted gunshot wound on 13 March 1971, but does not made a determination as to whether it was found to have been incurred in the LOD. 16. A memorandum from the Assistant Psychiatry and Neurology Consultant, Office of the Surgeon General, dated 14 May 1971, shows it was the opinion of the Surgeon General that the FSM was mentally unsound at the time of self-destruction and that his mental unsoundness was not due to his own misconduct. 17. On 20 February 2020, the Army Review Boards Agency (ARBA) clinical psychologist/medical advisor provided an advisory opinion, which states based on a thorough review of the available records, the FSM had combat-related PTSD when he went AWOL, ultimately resulting in his suicide. Given the nexus between PTSD and avoidance, the AWOL would be mitigated and rank restoration is recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. On 25 February 2020, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. She responded on 2 March 2020, stating: a. It has been 49 years since her husband’s death. She has felt sadness, loneliness and guilt since then. She always felt a sadness not only for herself for losing her husband, whom she loved dearly, but also for their children because they lost their dad at such young ages. Their youngest child was only 2 ½ years old when his dad died and doesn’t know what it feels like to have a dad. After her husband’s death, they struggled emotionally and financially. b. She is glad to know his rank/grade will be reinstated to SFC/E-7, since at the time of his death his rank/grade had been reduced to SSG/E-6, her widow’s benefit and benefits for dependent children were based on that SSG/E-6 rank/grade. Her widow’s benefits are still based on the rank/grade of SSG/E-6. The advisory opinion indicates his rank should not have been reduced because his actions were a result of PTSD and it will be restored to SFC/E-7. c. This should mean that going back to the date of his death in 1971, widow’s benefits and benefits for his 5 dependent children should have been based on a rank/grade of SFC/E-7 not SSG/E-6. Therefore, she should receive the difference between SSG/E-6 and SFC/E-7 payments for widow’s benefits from 1 April 1971 forward and their children should receive the same rank/grade difference in dependent benefits from 1 April 1971 to the point where each child turned 18 years old. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, the FSM’s military record, a medical advisory opinion, and regulatory guidance were carefully considered. The Board concurred with the medical advisory official finding the FSM had combat-related PTSD when he went AWOL, ultimately resulting in his suicide. Given the nexus between PTSD and avoidance, the AWOL would be mitigated and rank restoration was recommended. The Board agreed that there was sufficient documentation to show he held the rank of Sergeant First Class (SFC); thereby warranting correction in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :XXX 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 reinstating the FSM’s rank to Sergeant First Class. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005581 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1