ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2020 DOCKET NUMBER: AR20180008204 APPLICANT REQUESTS: An upgrade of his character of service from under other than honorable conditions to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Psychological Evaluation FACTS: 1. The applicant 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. The applicant states he believes his record is unjust in that he was suffering from undiagnosed post-traumatic stress disorder (PTSD) at the time of discharge and the PTSD was caused by his Vietnam War experiences. This condition dramatically affected his decision making and resulted in the actions that caused him to be discharged. The Department of Defense (DoD) has authorized correction boards to consider undiagnosed PTSD as a mitigating factor in cases such as his. He requests consideration of his case based on a diagnosis of PTSD and an upgrade of his discharge. 3. On 28 July 1971, at age 19, the applicant enlisted in the Regular Army for an unknown period of time. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). His last overseas tour was in Vietnam. 4. The applicant’s service records, to include the complete facts and circumstances surrounding his discharge processing, are not available for review with this case. However, his record contains a DD Form 214 that was prepared at the time of separation that shows on 6 January 1976, he was discharged in pay grade E-1. He had 1 completed 1 year, 10 months, and 25 days of active military service. His DD Form 214 also shows in: * Item 9c (Authority and Reason) – entry redacted * Item 9e (Character of Service) – Under Other Than Honorable Conditions * Item 18f (Foreign and/or Sea Service This Period), 5 months and 23 days * Item 19 (Indochina or Korea Service Since 5 August 1964) – 2 January through 25 June 1972, * Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – National Defense Service Medal, Vietnam Campaign Medal with 1960 Device, Vietnam Service Medal with Bronze Service Star, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar * Item 27 (Remarks) – * 928 days of lost time from 2 through 18 February 1973, 1 through 30 June 1973, 9 August 1973 through 6 January 1976 * "Misconduct – conviction by civil court or adjudged a juvenile offender * Item 29 (Signature of Member Being Separated) – "Separatee unavailable for signature" 5. The applicant provides a psychological evaluation, dated 17 May 2018, related to coping with ongoing effects/symptoms of PTSD from his Vietnam experiences. He endorsed symptoms including gross difficulty tolerating being in confined spaces, difficulty sleeping related to thoughts about combat experiences, startle response, and emotional triggering from such things as safety flares, fireworks, and tactile sensations that remind him of events in the jungle (such as leeches). He has used alcohol to numb these symptoms. a. He has been diagnosed with PTSD related to his combat experiences. Although his symptoms have worsened over the years, he reports that upon return from Vietnam, some of these symptoms were present including increased drinking, the startle responses, and difficulty with temper management, all in comparison to pre-combat days. b. The impact of these symptoms on his life has been reviewed, including being unable to tolerate settings for medical interventions and being with groups of people. He would like treatment for these issues. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation, as in effect at the time, provided policy for discharge due to misconduct, to include conviction by a civil court. An Under Other Than Honorable Conditions Discharge Certificate would normally be considered appropriate for a member discharged for conviction by a civil court. 7. In reaching its determination, the Board can consider the applicant’s petition, Vietnam service, behavioral health evaluation, and his service record in accordance with the published equity, injustice, or clemency guidance. 8. Based on the applicant's reference to a medical condition, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board member. See the "Medical Review" section. MEDICAL REVIEW The ARBA psychiatrist was asked to review the applicant's request. Documentation reviewed includes the completed DD Form 149 and supporting documentation, available military personnel records, the Department of Veterans Affairs (VA) electronic medical record (Joint Legacy Viewer), and applicant-provided civilian medical documentation. No hard copy military medical records were provided for review. The applicant has submitted the following civilian medical documentation: a letter dated 17 May 2018 authored by a PhD-level provider at a psychology center. In this letter, the provider states she has diagnosed the applicant with PTSD related to his combat experiences. She reported he suffers from the following trauma-related symptoms: difficulty tolerating closed spaces, problems with sleep due to thoughts of combat, increased startle response, emotional numbing, and tactile sensations reminding him of the jungle. The exact basis of the applicant’s separation is not clearly indicated in the available military paperwork, but it appears that the applicant was discharged because of excessive time lost, most likely due to the applicant absenting himself without leave. If this is indeed the case, then the applicant’s diagnosis of combat-related PTSD mitigates his misconduct. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA psychiatrist. Contrary to the ARBA psychiatrist's conclusion that his discharge may have been the result of excessive lost time, the Board noted the statement in the remarks block of the applicant's DD Form 214 that clearly indicates he was discharged for misconduct due to a civil conviction. The Board agreed that a sentence to imprisonment as a result of a civil conviction would also result in lost time. The Board further agreed that, as the record does not document what violation of law led to his civil conviction, it cannot be determined if PTSD was a mitigating factor in this case. The Board found insufficient evidence of in-service mitigating factors to support a recommendation for relief in this case. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 9/17/2020 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, 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 Army Board for Correction of Military Records (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 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 of the regulation, as in effect at the time, provided policy for discharge due to misconduct, to include conviction by a civil court. An Under Other Than Honorable Conditions Discharge Certificate would normally be considered appropriate for a member discharged for conviction by a civil court. b. 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. c. 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. 3. 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 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. 4. 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; 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 sexual assault or sexual harassment was unreported, or 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. 5 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 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. 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, 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. 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//