ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 24 August 2020 DOCKET NUMBER: AR20180008046 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions as promulgated in Dockets Number 70-999 and 70-999A, on 17 July 1970 and 22 July 1974, respectively. Specifically, he requests his bad conduct discharge (BCD) be 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 2 May 2018 * two pages of civilian medical documentation, dated 7 October 1999 * a letter from his treating physician, dated 21 February 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 Dockets Number 70-999 and 70-999A, on 17 July 1970 and 22 July 1974, respectively. 2. The applicant states he is requesting a change to an honorable discharge for all of the benefits he deserves. He was not absent without leave (AWOL) for 297 days in Vietnam. 3. The applicant was inducted into the Army of the United States on 24 August 1967. He completed basic training at Fort Leonard Wood, Missouri and advanced individual training at Fort Polk, Louisiana. Upon completion of his initial entry training, he was assigned to Fort Benning, Georgia for airborne training. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on three occasions while he was a trainee at 40th Company, 4th Student Battalion (Airborne), Student Brigade, U.S. Army Infantry School, Fort Benning, Georgia: * on 5 March 1968, for absenting himself from his unit, without authority, from on or about 2 March 1968 through on or about 4 March 1968 * on 1 April 1968, for willfully disobeying a lawful command from his superior non- commissioned officer (NCO) and two instances of being disrespectful in deportment toward a superior NCO, on or about 19 March 1968 * on 13 April 1968, for absenting himself from his unit, without authority, from on or about 3 April 1968 through on or about 9 April 1968 5. Before a special court-martial on or about 8 May 1968, at Fort Benning, Georgia, the applicant was found guilty of violating Article 90 of the UCMJ; specifically, one specification of willfully disobeying a lawful command from a superior commissioned officer, on or about 18 April 1968. The Court sentenced him to perform hard labor for 30 days. The sentence was approved on 13 May 1968. 6. The applicant was assigned, on or about 25 June 1968, to Company E, 4th Battalion, 3rd Infantry Regiment, 11th Infantry Brigade, in the Republic of Vietnam. 7. Before a special court-martial on or about 25 September 1968, in the Republic of Vietnam, the applicant was found guilty of violating Article 92 of the UCMJ; specifically, one specification of failure to obey a lawful order issued by a superior commissioned officer, after having knowledge of the same, on or about 8 August 1968. The Court sentenced him to confinement at hard labor for three months and forfeiture of $51.00 pay per month for three months. The sentence was approved on 15 October 1968. 8. Before a general court-martial on or about 18 January 1969, in the Republic of Vietnam, the applicant was found guilty of violating Article 90 of the UCMJ; specifically, one specification of striking his superior officer, who was then in the execution of his office, on the head with a fist and one specification of willfully disobeying the lawful command of a superior officer, on or about 28 October 1968. He was sentenced to be confined at hard labor for five years, forfeiture of all pay and allowances, and to be discharged from the Army with a BCD. 9. The general court-martial convening authority (GCMCA) approved, on 11 June 1969, only so much of the sentence as provided for a BCD, total forfeiture of all pay and allowances, and confinement at hard labor for one year. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review by the U.S. Army Board of Military Review. 10. General Court-Martial Order Number 894, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 11 September 1969, noted the findings and sentence in the applicant's case had been affirmed and ordered the sentence duly executed. 11. The applicant was discharged on 29 September 1969. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b, by reason of conviction by general court-martial. He was issued a DD Form 259A (BCD Certificate) and his service was characterized as under other than honorable conditions (UOTHC). He was credited with one year, one month and 11 days of net service. 12. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 17 July 1970 and on 22 July 1974. In each instance, the Board determined he was properly discharged and denied his request for relief. 13. The applicant provides the following: a. Two pages of civilian medical documentation from Saint John's Mercy Medical Center, indicating he was admitted to the hospital on two occasions in October 1999. His diagnoses at the time of his admittance were Major Depression/Stress and Depressive Psychosis – Unspecified. b. A letter from his treating physician at SLUCare, Department of Psychiatry, Saint Louis, Missouri, indicating he has been treated in the outpatient psychiatry clinic at Saint Louis University since September 2017, for Major Depressive Disorder and PTSD. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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 mental health conditions, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 16. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His military medical records were not available for review. 2. A review of VA’s Joint Legacy Viewer (JLV) indicates he was evaluated at the VA on 28 Sept 2013 for an appeal exam to determine if the applicant was “insane” at the time of the event that led to his conviction and discharge. A previous VA administrative decision dated 7 Dec 1975 indicates the applicant was evaluated by a psychiatrist at Leavenworth on 4 Aug 1969 and diagnosed with Inadequate Personality Disorder, chronic, moderate. The provider noted there were 3 hardship discharge requests in his c-file from 1968 stating his mother and wife relied on him financially. 3. The provider noted his c-file also contained a number of psychiatric evaluations with inpatient hospitalizations and outpatient visits for multiple diagnoses to include Schizoaffective Disorder, Major Depressive Disorder (MDD), MDD with psychotic symptoms, probable Antisocial Personality Disorder, and Atypical mania. During the interview, the applicant reported getting into a verbal argument over a bunker in Vietnam and he hit the officer. He reported a history of “snapping” when he gets angry. The psychologist diagnosed him with MDD and stated any “opinion” regarding insanity at the time of the offense would be pure speculation. On 9 Aug 2017, he completed a Compensation & Pension Examination. The provider confirmed a diagnosis of PTSD due to his service in Vietnam. He does not have a service connected disability rating. 4. The applicant met retention standards at the time of his discharge. The applicant’s misconduct started before being sent to Vietnam and continued during his tour. PTSD is not a mitigating factor for assault. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief and amend the ABCMR decisions set forth in Dockets Number 70-999 and 70-999A, on 17 July 1970 and 22 July 1974, respectively. 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 insufficient evidence of error, injustice, or inequity. The Board agreed with the ARBA Medical Advisory opinion that there is evidence the applicant engaged in significant misconduct before his deployment and during his time in service and behavioral health conditions are not reasonably related to the misconduct which led to his early separation. The Board agreed that the applicant’s discharge characterization is appropriate for the serious misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned or amendment to the ABCMR decisions set forth in Dockets Number 70-999 and 70-999A, on 17 July 1970 and 22 July 1974, respectively. X CHAIRPERSON 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, 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 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, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7a provides that 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 was clearly inappropriate. b. Paragraph 3-7b provides that an under honorable conditions (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. c. Paragraph 11-1b, an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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, 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, 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. 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, 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//