IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180007869 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20040011735, on 18 August 2005. Specifically, he requests his under honorable conditions (general) discharge, previously upgraded under the Department of Defense (DoD) Special Discharge Review Program (SDRP), be affirmed or further upgraded to an honorable discharge. 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), dated 3 April 2018 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040011735, on 18 August 2005. 2. The applicant states, his service in the Republic of Vietnam caused him to suffer from post-traumatic stress disorder (PTSD), which became the underlying issue for his discharge. His Veterans Service Office (VSO) counseled him that PTSD may have been the source of his behavior while he was serving in Vietnam. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 27 February 1972, shows his service in Vietnam. 3. The applicant enlisted in the Regular Army on 22 December 1969. 4. The applicant received a summary court-martial in basic training and finished with an unsatisfactory rating. He completed advance individual training with poor ratings. He was then assigned to Fort Benning, GA for additional training in military occupational specialty (MOS) 63C (Track Vehicle Mechanic). He completed this training on or about 16 June 1970. Following training, he was assigned for duty in the Federal Republic of Germany. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 27 July 1970, for being absent without leave (AWOL) from on or about 5 July 1970 through on or about 24 July 1970 * on 4 October 1971, for being AWOL from on or about 8 September 1971 through on or about 21 September 1971 6. The applicant began his service in Vietnam on or about 5 November 1971. 7. The applicant accepted NJP on 8 December 1971, under the provisions of Article 15 of the UCMJ, for failing to repair and for disobeying a lawful order, on or about 29 November 1971. 8. Court-martial charges were preferred against the applicant on 29 January 1972, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with: * being disrespectful towards his superior commissioned officer, on or about 7 January 1972 * willfully disobeying a lawful command from his superior commissioned officer, on or about 7 January 1972 9. The applicant consulted with counsel on 6 February 1972. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. He declined to submit a statement in his own behalf. 10. The separation authority approved the applicant's request for discharge on 18 February 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 27 February 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as under other than honorable conditions (UOTHC). His DD Form 214 further shows he served in Vietnam and was awarded the Vietnam Service Medal with two bronze service stars. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 5 April 1973, determined he was properly discharged, and denied his request for relief. 14. 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. 15. The applicant's discharge was reviewed under the DoD SDRP. The ADRB informed the applicant that they had elected to upgrade his UOTHC discharge to an under honorable conditions (general) discharge, effective 12 July 1977. His previous DD Form 214 was voided and a new DD Form 214 was created to reflect this change. 16. 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. 17. In accordance with Public Law 95-126, the ADRB reconsidered the applicant's discharge. The ADRB determined his characterization was warranted in accordance with the DoD SDRP. Accordingly, a DD Form 215 was issued on 14 July 1978 showing his characterization of service warranted under the provisions of the DoD SDRP. The board did not affirm his discharge upgrade under Public Law 95-126. 18. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 18 August 2005, determined he was properly discharged, and denied his request for relief. 19. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration was applied, documentation is insufficient to determine whether or not the applicant had a psychiatric condition in-service. Accordingly, an upgrade is not recommended from a behavioral health standpoint. b. Due to the period of service, active duty electronic medical records are void. Active duty hard copy medical records were unavailable. The electronic packet did contain a June 1971 profile noting “multiple contusions” from a car accident; there were no psychiatric limitations. c. The applicant is not service connected. While the applicant has medical appointments from 2013-2016 in the VA records, it is void of behavioral health appointments. 20. The Board has been advised in similar cases that the VA often requires validation or affirmation of DoD SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits. 21. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is insufficient evidence to grant relief and amend the ABCMR decision set forth in Docket Number AR20040011735, on 18 August 2005. 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. The Board agreed with the ARBA Medical Advisor that there is insufficient evidence that the applicant’s behavioral health conditions are service connected. Furthermore, the Board found insufficient evidence to grant clemency. Therefore, the Board found that the applicant’s current characterization is appropriate. 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 insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20040011735, on 18 August 2005. 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. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set 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 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 under other than honorable conditions is normally considered appropriate. 2. The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. 3. Public Law 95-126 was enacted in October 1978. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration of all discharges previously upgraded under the DoD SDRP was required 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. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g. conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. 4. 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. 5. 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. 6. 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// ABCMR Record of Proceedings (cont) AR20180007869 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007869 7 ABCMR Record of Proceedings (cont) AR20180007869 6