BOARD DATE: 30 July 2020 DOCKET NUMBER: AR20180008465 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC81-05211A on 16 September 1981. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. Additionally, he requests a personal hearing before the Board. 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 7 November 2017 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 29 May 1973 * Psychiatric Assessment, dated 13 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 AC81-05211A on 16 September 1981. 2. The applicant states: a. He enlisted in the Army at the age of 17; he finished basic training and was shipped directly over to Vietnam. While in Vietnam, he was exposed to war and horrible things, to include people being killed in front of him and blown up. He was scared and young, he thought he could conquer the world but quickly realized he couldn’t. He wanted to go home but couldn’t. b. Drugs were readily available to him while he was in Vietnam. The others in his unit were using drugs to escape the experiences they had, so he chose to as well. He got addicted to cocaine and marijuana. When he returned to the U.S., he was charged with theft. He stole to get money for his addictions and was sent to Fort Leavenworth, KS. He would not have started using drugs if he had not been sent to Vietnam, or had the officers restricted the use of it. He wanted to escape a bad situation. 3. The applicant enlisted in the Regular Army on 26 May 1970. 4. The applicant served in the Republic of Vietnam from on or about 30 October 1970 through on or about 20 October 1971. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 26 September 1970, for wrongful appropriation of merchandise, on or about 20 September 1970 * on 9 October 1971, for failure to go at the prescribed time to his appointed place of duty, on or about 9 October 1971 * on 2 June 1972, for failure to go at the prescribed time to his appointed place of duty, on or about 24 May 1972 and 25 May 1972 6. Before a general court-martial on or about 11 October 1972, at Fort Rucker, AL, the applicant was found guilty of one specification of stealing a radio-stereo and clock radio, on or about 22 July 1972, and one specification of unlawfully receiving a television and a stereo record player, on or about 15 July 1972. The court sentenced him to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement at hard labor for 14 months, and to be discharged from the service with a bad conduct discharge (BCD). 7. The sentence was approved on 21 November 1972 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 8. The U.S. Army Court of Military Review affirmed the sentence on or about 8 February 1973. 9. General Court-Martial Order Number 414, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS on 11 May 1973, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 10. The applicant was discharged on 29 May 1973. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2. He received a BCD as a result of court-martial, and his service was characterized as UOTHC. 11. 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. 12. The applicant provides a psychiatric assessment, dated 13 April 2018, wherein the examining physician noted the applicant was malingering to obtain a diagnosis of post- traumatic stress disorder (PTSD) for the secondary gain of service connection with the Department of Veterans Affairs (VA) Hospital. 13. The Army Review Boards 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: While liberal consideration was applied, the applicant is not service connected. Moreover, the applicant supplied a 2018 assessment clearly noting the applicant does not have PTSD to the extent the provider believed he was malingering to obtain the diagnosis for VA benefits. Irrespective, theft is not a natural progression or normal sequela of PTSD. Accordingly, an upgrade is not recommended. Due to the period of service, active duty electronic medical records are void. Active duty hard copy medical records are unavailable. The applicant is not service connected. He reached out for housing assistance in 2007 and 2009 denying any psychiatric diagnoses or difficulties. The applicant submitted an April 2018 civilian evaluation he sought to “get service connected with the VA.” The applicant denied and did not present with impairment or difficulty discussing his Vietnam experiences. He noted mild and transient anxiety related to work and finances resulting in an as-needed low dose of an antianxiety medication. He stated he was “lucky” he came back from Vietnam “healthy and sane.” The provider noted the applicant had a “history of multiple charges and encounters with the law and had spent time in civilian prison in addition to military prison.” The provider indicated a prior 2017 assessment was also sought to obtain a PTSD diagnosis and “reverse his bad conduct discharge.” The provider commented the applicant “appeared to be manipulative and angling for a diagnosis of PTSD.” The provider diagnosed Anxiety Disorder NOS and Malingering. 14. The Board should consider the applicant's statement and evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical advisory opinion, and published Department of Defense 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 medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by PTSD. Based on a preponderance of evidence, the Board determined 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC81-05211A, dated 16 September 1981. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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 11 provided that an enlisted person would 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. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 4. 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. 5. 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. 6. 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. 7. 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) AR20180008465 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008465 7 ABCMR Record of Proceedings (cont) AR20180008465 5