BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20180008202 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge 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 8 March 2018, with two self- authored statements * Standard Form (SF) 89 (Report of Medical History), dated 26 February 1971 * self-authored statement from 1971 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 8 March 1971 * newspaper article * Vet Center Intake Form, dated 9 May 2016 * Department of Veterans Affairs (VA) Form 21-0960P-3 (Review Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire), dated 12 February 2018 * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 15 March 2018 * VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 15 March 2018 * four third party letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (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 the following: a. He was suffering from severe PTSD that resulted from his service in Vietnam. Upon his return to Fort Lewis, he was admitted to Madigan General Hospital for injuries incurred during his service. He was prescribed Valium by his primary care provider. He was not properly counseled and had a difficult time transitioning from war to civilian life. Before, during, and after his military service, he has lived an honorable life. He thought he needed to travel from Alaska to Washington D.C. to get his discharge changed and could not afford the travel. b. In a self-authored statement, dated 14 June 2016, he provides a brief history of the events leading to his discharge and his experiences post service. (1) He was a crew chief and door gunner on a Bell UH-1 helicopter in Vietnam. He spent 11 months and 23 days in Vietnam before being sent by medevac to Japan and then Madigan General Hospital at Fort Lewis, Washington. (2) While in the hospital, he was given large doses of Valium three times a day. He was given a large bottle of Valium, along with another prescription drugs to take home upon discharge. The hospital recommended he be medically discharged but he was placed with another unit on Fort Lewis. He was heavily medicated, suffering from PTSD, unable to fit in at his new unit, and unable to adjust to being back from Vietnam. He has little memory of this time in his life due to the large doses of Valium and the trauma he was dealing with. (3) It took him 40 years to find out what was wrong. He has been seeing a licensed clinical social worker (LCSW), who diagnosed him with PTSD and determined his inability to hold a job for more than one year, his relationships with others, anger, nightmares and flashbacks, are the direct result of his time in Vietnam. He still has most of these symptoms today. He also suffers from serious heart and lung problems, possibly from exposure to Agent Orange. (4) He needs help from the VA and deserves treatment for the service he rendered to his country. He believes, given his circumstances at the time, his reckless behavior is more understandable in today's terms. c. In a self-authored statement, dated 13 June 2017, he provides detailed information regarding his military service and the circumstances leading to his discharge. (1) He enlisted in the Army on 27 September 1968 with the intentions of making it a career. He went to basic training at Fort Lewis, performed at the top of his platoon, and was promoted to E-2 right out of basic training. He went to the Helicopter Training Center at Fort Eustis, Virginia, and was promoted to Specialist Third Class. At the end of training, he was in the top of his class again and promoted to Specialist Fourth Class. He was given leave to go home prior to being shipped out to Vietnam. (2) He did his job well. He came under fire many times, coming into landing zones hot, and hitting pretty hard. God was with them many days. (3) He and his gunner had a day off and received permission to leave base for one day. They were unaware of the North Vietnamese Army (NVA) activity in the area, which caused them to be unable to get back that night. A local Vietnamese hooker assured their safety and let them stay at her house. When they arrived back at their base the next morning, they were given an "AWOL" and an Article 15 for the 12 hours or so. He didn't know they were going to take his rank away, and in Vietnam there was no way to contest this. (4) He was placed back on helicopter duty, flying troops in and out of combat zones, and bringing wounded out. He made it 11 months and 23 days into his 12 month tour when he came down with a severe case of hepatitis. He was medically evacuated to Japan and then to Madigan General Hospital at Fort Lewis. He was prescribed the heavy doses of Valium to control his anxiety. His thinking was fuzzy, confused and he was disoriented. The base commander did not approve his medical discharge. He was still ill and on heavy doses of Valium when he was discharged. (5) He had gone to hell and back and wasn't even given a welcome home. He was yelled at, disrespected for doing his job and for being a Soldier, a good one at that. After coming back from leave, he was put in a unit without any Vietnam Veterans. He couldn't adjust. With pressure from his girlfriend and help from a friend, he left base to be with his girlfriend. He married her, got a job and was having a good time except for the weight of how he left the military. He returned to base to take care of his AWOL. He was given 60 days hard labor without confinement and was reduced to E-1. (6) Several months later, his pregnant wife filed for divorce. She had threatened to divorce him if he did not get out of the Army. He was granted several days to pick up clothing and attend a divorce court hearing. He did not leave at the prescribed time, became intoxicated, and his leave was revoked. He was then granted one day of leave to attend divorce court. He mishandled this leave and was apprehended by the Military Police (MPs), escaped, and returned six days later. (7) He is sorry for what he did. He believes if he would have had help with his PTSD or had been taken off the Valium, he may have handled his situation differently. He does not feel a reasonable person would have done what he did. He has carried this shame for over 40 years. (8) He has suffered with PTSD for over 40 years. He drank heavily for years, and is now in recovery. He has a string of broken marriages and relationships but he is now with a wonderful woman. He has severe health issues from his tour in Vietnam. He knows his life has been drastically shortened. He is hoping to correct his discharge and regain his honor; the honor he earned in Vietnam for the service he performed so very well there. 3. The applicant enlisted in the Regular Army on 27 September 1968. 4. Before a special court martial on or about 16 November 1970, at Fort Lewis, Washington, the applicant was found guilty of absenting himself from his place of duty, without authority, from on or about 1 September 1970 through on or about 24 October 1970. The court sentenced him to 60 days at hard labor without confinement, restriction to the limits of Air Cavalry Troop for 60 days, and reduction in rank/grade to private/E-1. 5. The applicant's service record includes a DA Form 268 (Report for Suspension of Favorable Personnel Actions), which indicates the applicant's chain of command initiated an administrative flag on 19 January 1971. The applicant was apprehended by the Douglas County Sheriff's Office on 21 January 1971 and confined in the Douglas County Jail. He was returned to military control on 26 January 1971 and placed in pre- trial confinement pending court-martial for violations of Article 95, Article 86, and Article 128 of the Uniform Code of Military Justice (UCMJ). 6. The applicant underwent a medical examination on 26 February 1971. The relevant SF 89, located in the applicant's service record, notes that the applicant reported being in good physical condition. He previously received medical treatment for hepatitis and ulcers at Madigan General Hospital. The corresponding SF 88 (Report of Medical Examination) indicates his examination was within normal limits. 7. The applicant’s record is void of the complete facts and circumstances that led to his discharge. However, his record does contain a memorandum that shows that on 26 February 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service, and further directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. The applicant was discharged on 8 March 1971, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 and his service was characterized as UOTHC. He was credited with two years, three months and 12 days of net service, with service in the Republic of Vietnam from 31 March 1969 through 26 March 1970. 9. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 10. The applicant provides the following: a. In a handwritten statement, which was written at the time of his separation, he requested a discharge under the provisions of Army Regulation 635-200, Chapter 10. He provided a brief history of his time in the military and further stated his reasons for going absent without leave (AWOL). He wished to return to his family, regain their love, return to school, and get a normal job. b. A newspaper article provides information regarding the applicant's return from Vietnam and his hospitalization at Madigan General Hospital for hepatitis. c. A Vet Center Intake Form, dated 9 May 2016, which includes a traumatic brain injury (TBI) assessment, mental status evaluation, health history, development (pre- military) history, military history, post military history, and assessment. The evaluating clinician determined that the applicant met the criteria for both PTSD and the need for readjustment counseling. d. A VA PTSD Questionnaire, dated 12 February 2018, provides his responses to the PTSD criteria, symptoms, and clinical findings. His diagnoses were listed as PTSD and Depression (Chronic). e. A completed Appointment of Veteran's Service Organization as Claimant's Representative Form, dated 15 March 2018 and a Statement in Support of Claim for Service Connection for PTSD, also dated 15 March 2018, in which he describes his experiences as a crew chief door gunner in Vietnam. He operated an M60 machine gun, with no idea how many people he killed. He lost a fellow door gunner during an assault. They frequently flew into hot landing zones following napalm drops. There were many dead and people running around on fire. The memories are very bad. f. Four third party letters of support. (1) A LCSW, who has been working with Veterans for over ten years, states he has worked with many veterans whose discharges have been upgraded easily. He believes the applicant is more deserving than most, yet has been twice denied, which compelled him to write on his behalf. (a) The applicant served as a door gunner/crew chief on a Huey; a most difficult position during the Vietnam War. He felt luck to return to the United States even though it was a month early with severe hepatitis. (b) He spent three months hospitalized, doped up on valium, too agitated to be compliant. He suffered severe weight loss and energy loss for years following his release from the hospital. He was prescribed two Valium, three times per day. This resulted in memory loss which continues to this day. (c) His girlfriend gave him an ultimatum; he went AWOL to get her back. The Valium or the PTSD may have caused this lack in judgment. After less than two weeks he was brought back to base and given a document to sign which turned out to be his court-martial and release from the military. (d) He has only one other blemish on his record for less than 8 hours missing from his duty station following a missed flight back to base while in Vietnam. He returned to his helicopter duties upon his return and continued to serve his country in an honorable manner. (e) In his judgement as a therapist, the applicant suffered and continues to suffer classic PTSD symptoms. He has suffered relationship losses, PTSD, alcoholism, drug addiction, inability to hold a job, and severe health issues all related to his experience in Vietnam. He has not been credited for his honorable and heroic service in-country. The least his country can do for him is return that honor and dignity to him by granting a change in discharge. (2) A fellow student in refrigeration school and friend, states he has known the applicant for over 30 years. He recognized immediately that the applicant struggled with a stark reality unique to our country's Veterans. He is familiar with the effects and how they play out, as his own father was a Vietnam Veteran. He has known the applicant to be an outgoing person with the few people he allows in his world. He has tried to chase away memories by coaching little league and volunteering at church, yet he still struggles with PTSD. Had he received the right counseling, or any at all, he would have a very different life story. Maybe one of joy, happiness, and a greater degree of success; one that he earned and has a right to. Life opportunities were robbed from him. He tries very hard to be a genuinely good man. (3) A fellow congregant at church states he has known the applicant for over 20 years. He would give the shirt off his back to anyone. He is one of the best human beings he knows. (4) A Veteran's Service Coordinator from Chelan County, Washington, states he has listened to many stories about Vietnam and the kind of craziness that happened there. He feels he is in the presence of great men and women working with Veterans. He believes sometimes they slip through the cracks and do not get the justice they deserve. The applicant served proudly, fought like hell in Vietnam and returned home to fight PTSD the rest of his life. He further states he is humbled by this process and wishes the Board much happiness in knowing their service makes a difference to each and every Veteran. 11. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military 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. A review of the applicant’s service record indicates the applicant submitted a statement for consideration when he requested administrative separation. He reported being depressed and was anxious to be with his family and went absent without leave (AWOL). He reported doing better “being away from large groups and just holding a normal job.” A review of VA’s Joint Legacy Viewer (JLV) indicates he does not have a service connected disability rating. A review of the applicant’s packet indicates he was evaluated at the Vet Center on 9 May 2016 and diagnosed with PTSD related to Vietnam service and Depression subsequent to PTSD. The applicant filed a PTSD claim with the VA in 2018. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. His separation physical indicates he met retention standards at the time of his discharge. PTSD is a mitigating factor for AWOL. 12. 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. BOARD DISCUSSION: After reviewing the application and all supporting evidence, including the applicant’s statement and the ARBA Medical Advisory Opinion, the Board found that full relief was warranted. In accordance with the Liberal Consideration guidance, the Board agreed with the ARBA psychiatrist that there is documentation to support a behavioral health condition at the time of his discharge, which mitigated the behavior leading to his Under Other Than Honorable discharge. Additionally, the Board found clemency grounds for an upgrade based on his service in Vietnam. Therefore, the Board found that an “Honorable” discharge is warranted and narrative reason should be changed to “Secretarial Authority”. 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: 1. amending the applicant’s DD Form 214, dated 8 March 1971, showing the following amendments: • item 11c (Reason and Authority) to "AR 635-200, Chapter 5, SPN 21L, Secretarial Authority;” • item 13a (Character of Service) to "Honorable" • item 13b (Type of Certificate Issued) to “DD Form 256” 2. Issuing the applicant an Honorable Discharge Certificate, DD Form 256. 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, 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 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 under other than honorable conditions 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, 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// ABCMR Record of Proceedings (cont) AR20180008202 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008202 11 ABCMR Record of Proceedings (cont) AR20180008202 8