ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20180008382 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney letter, 14 June 2018 * Self-authored statement * Sworn statement of applicant * Support statement from X___, 20 June 2007 * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) * DA Form 20 (Enlisted Qualification Record) * Health record from 8 March 1968 - 21 September 1970 * Progress notes from Northport VAMC * Psychiatric/Psychological questionnaire * Photocopied pictures * Letter from attorney, 19 July 2018 * Additional letter from Dr. X__ concerning the applicant’s health, 19 March 2019 * Letter from attorney, 9 May 2019 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100011237 on 20 October 2010. 2. The applicant states in effect, request for a discharge upgrade from under honorable conditions to honorable with an accepted justification for his AWOL (absent without leave) period that was an excess of 180 days. As indicated on his DD Form 214, his discharge was upgraded to under honorable conditions on 4 January 1978 under the Department of Defense (DOD) Special Discharge Review Program (SDRP). He would like to specifically refer to issues that he may not have discussed, but were reasonably raised by the evidence in his Veteran Affairs (VA) claims file, as well as records and documentation in the VA's possession and accordingly should have been reviewed by the Regional Office, including but not limited to the mitigating and compelling circumstances surrounding his excess of 180 days AWOL. a. He was underage when he joined the military with only a 9th grade education and low level of judgement and maturity. His Armed Forces Qualification Test score was low as the Army required a minimum score of 36 and his score was 28. He was an unsuitable candidate for service per the government’s standards, but was accepted nonetheless for service. b. A VA examiner opined that his PTSD (post-traumatic stress disorder) was acquired as a result of his service in Vietnam and his PTSD was highly influential in his decision to go AWOL. In addition a VA doctor assessed that he was unfit for service due to mental collapse. While serving in combat, he was stripped of his weapon, but expected to continue to carry out his combat duties, causing further stressors. c. It should be noted that while AWOL, he made diligent efforts to return to the military but was subjected to physical beatings each time. Despite his AWOL status and character of discharge prior to 4 January 1978, he later received Vietnam Service Medals, 2 Overseas Service Bars, Combat Infantry Badge, Meritorious Service Medal, a Letter of Appreciation and a Letter of Commendation. As such, in light of his diagnosis of PTSD and the compelling and mitigating circumstances surrounding his AWOL he should receive a military discharge upgrade and his excess of 180 days AWOL period associated with my service in Vietnam be deemed justified as a result. 3. The applicant provides: a. Attorney letter, 14 June 2018 stating please find DD Form 149, attached upgrade petition and attached evidence for the applicant b. Self-authored statement addressed above c. The copy of the sworn statement from the applicant states he is seeking an honorable discharge. His very limited education has prevented him from understanding the regulations. He states his family insisted that he join the Army when, in fact, he had no real desire to join. His test scores prior to entry were very low which placed him in a Category "V" status. He contends he did try very hard while in basic training which resulted in "excellent" efficiency and conduct ratings. (1) He also states that while in Vietnam he spent a lot time with the infantry on patrol. He would get to know these Soldiers and then they would get killed. During a patrol in September 1969, four U.S. Soldiers were killed and so were enemy Soldiers. While searching for booby traps on the enemy, he found family pictures on one of the deceased, which made the situation too real for him to handle. He became very angered and confused. (2) A brand new master sergeant was assigned to his unit who had no idea how to handle troops in a combat environment and who had no respect for them. The applicant states he (applicant) showed up late for a meeting and was openly rebuked for it. He was told by the master sergeant that he was a disgrace to the uniform and had no business in the Army. The applicant states that this attitude might have been funny in basic training, but there was no place for it in combat. He claims he lost it and told the master sergeant he would kill him, and then ran and hid. After he was found, he was sent to the hospital for a psychiatric evaluation. ·He remained there two days and was released back to his unit for full duty participation without permission to use a weapon. He states he started to develop stomach problems. (3) When he returned home from Vietnam, he was in bad shape, both mentally and physically. He was due to report to Fort Carson, CO but was told he would continue to be barred from the use of all weapons. He contends he could not see himself continuing to serve in the military without a weapon and the shame he would face at his new duty station because of it. He decided not to return to duty right away. In the interim, his mother sought help for him from the VA and from the Army but received no response. (4) Although he finally surrendered to military authorities, he states he does not remember talking to any officer or to an attorney. He signed the papers and was discharged. He thought his earlier discharge upgrade would allow him to receive psychiatric help through the VA. His stomach problems were continuous and so severe he eventually had to have surgery. He has learned a lot from this tragic part of his life. He will be forever affected by the death and destruction he witnessed in Vietnam. He will also be affected from the lasting effects of facing combat without the use of a weapon; however, he has tried not to let this define him. He requests that his entire life be considered and he be granted an honorable discharge for his honorable service. d. Support statement from JM, 20 June 2007 explaining how they grew up together as children and their current relationship. She states she received a letter from him while he was in Vietnam and he seemed very depressed. He had nothing good to write about. She describes how he suffered with stomach problems and sleeping problems upon his return. She contends that these problems eventually led to her husband being diagnosed with an ulcer, and, in 1992, having a portion of his stomach removed. e. DD Form 214 which shows he was discharged under honorable conditions on 12 March 1971. In item 27 (Remarks) of his DD Form 214 states Upgraded under the DOD discharge review program (special), date discharge upgraded was 4 January 1978. f. DD Form 215 which shows item 27 discharge reviewed under the provisions of PL 95-126 and a determination made that characterization of service was warranted UP of DOD SDRP, 4 April 1977. g. DA Form 20 that shows in block 31 (Foreign Service) he served in Vietnam from 15 January 1969 until 14 January 1970. Block 33 (Appointments and Reductions) shows his rank was reinstated to private first class (E-3) with a date of rank of 14 October 1969 after SDRB on 4 January 1978. h. Health record from 8 March 1968 - 21 September 1970 shows that on 25 September 1969 the applicant was recommended for psychiatric evaluation by his company commander. As a result, he was hospitalized and released on 27 September 1969. He was released from the hospital after a 48-hour period and returned to duty with a "no weapons use" note. i. Progress notes from Northport VAMC, printed on 27 November 2009 indicates that the applicant was diagnosed with PTSD as a result of his tour in Vietnam and the following contributors were noted as: * Acute Stress Disorder (in-country) leading to PTSD * Bronchial Asthma * Catastrophic stressors; combat trauma j. Psychiatric/Psychological questionnaire showing he was treated for PTSD and his prognosis was fair. k. Photocopied pictures of a young man assumed to be the applicant in what appears to be a field setting perhaps Vietnam. l. Letter from attorney dated 19 July 2018 with attached progress notes from Northport VAMC, printed on 11 July 2018, stating please refer to a psychiatry note entered by Dr. X__ dated November 27, 2009. In this note Dr. X__ opined that the applicant was suffering from Acute Traumatic Stress Disorder due to provocation and a declining morale, which was misconstrued as defiance of authority (see page 380 paragraph II). The applicant was ordered back into combat without a weapon to defend himself, which not only caused him to have Acute Traumatic Stress Disorder, but also led him to go AWOL for over the excused period of 180 days by 128 days. Dr. X__ recommends and urges that the applicant be given the same opportunities and understanding, including disability compensation benefits, that today’s 21st century Soldiers are given (see page 380 paragraphs III-IV). m. Additional letter from Dr. X__ concerning the applicant’s health, 19 March 2019 stating he is writing on the applicant’s behalf to encourage the courts to expedite any hearings pertaining to the applicant’s case. He is highly concerned that given the applicant’s current persistent and severe lung conditions coupled with his recently increasing frequency of lung related hospitalizations and complications, it is paramount to expedite his case in order to ensure that he can receive appropriate courts attention during his limited survivorship. While he is unable to gauge exactly the applicant’s expected lifespan, he can confidently say that given the severity and long term status of his multiple lung diagnoses, which include Acute Hypoxic Respiratory failure, Chronic mixed hypoxic and hypercarbic respiratory failure, Severe Emphysema, Severe Chronic Obstructive Pulmonary Disease, he is expected to have a shortened lifespan compared to his peer group. Unfortunately for the applicant these above named conditions are permanent and most are irreversible or only partially reversible. n. Letter from attorney, 9 May 2019 requesting that the applicant’s petition be expedited due to his severe pulmonary conditions. 4. The applicant’s service records are void for review. On 26 October 2010, the applicant was notified that the Army Board for Correction of Military Records on 20 October 2010 the Board considered his application under procedures established by the Secretary of the Army, and the application was denied. 5. On 25 July 2019, the medical psychiatrist after reviewing the currently available documentation and, in accordance with the 3 September 2014 Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD rendered an advisory opinion in the applicant’s case. The advisor opined: a. The applicant has a Behavioral Health condition (PTSD) which is mitigating for most of his misconduct. As PTSD is associated with avoidance behavior, there is a nexus between the applicant's PTSD and the following incidents of AWOL: 19 February 1970-21 September 1970 (215 days); 6 October 1970-19 October 1970 (14 days); 21 October 1970-6 January 1971 (78 days). Applicant's diagnosis of combat-related PTSD mitigates the aforementioned incidents of AWOL. Applicant's period of AWOL from 24 August 1968-25 August 1968 (one day) is not mitigated by his diagnosis of combat-related PTSD as this period of AWOL occurred before the applicant was deployed to Vietnam. b. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military records DO support the existence of PTSD at the time of discharge; the applicant's military records indicate that the applicant DID meet medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness);·and the applicant's diagnoses of PTSD IS mitigating for the misconduct that resulted in the applicant's under honorable conditions discharge from the military. 6. On 1 August 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a rebuttal. He did not respond. 7. The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 4 August 1964 and 28 March 1973, inclusive. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action: received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law. 8. On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty: UOTHC. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. 9. By regulation, AR 40-501 chapter 3 (Retention Medical Fitness Standards) sets forth the various medical conditions and physical defects which normally render a member unfit for further military service. 10. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 11. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions, letters of support, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed previously undiagnosed PTSD mitigated the misconduct that resulted in his discharge, and that an upgrade to an Honorable character of service is now warranted. 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 amendment of the ABCMR's decision in Docket Number AR20100011237 on 20 October 2010. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 12 March 1971 showing his character of service as Honorable. 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. The DOD SDRP was directed in a memorandum from the Secretary of Defense in 1977. The SDRP stipulated that all former service members who received undesirable or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Eligibility for the program was restricted to individuals discharged with either an undesirable discharge or a general discharge between 4 August 1964 and 28 March 1973, inclusive. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action: received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act of misconduct that would be subject to criminal prosecution under civil law. 2. On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions (UOTHC) discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA. The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty: UOTHC. It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards. 3. Army Regulation (AR) AR 40-501 (Standards of Medical Fitness) chapter 3 (Retention Medical Fitness Standards) sets forth the various medical conditions and physical defects which normally render a member unfit for further military service. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) 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. 5. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 6. 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. 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 based on 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) AR20180008382 9 1