IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180008473 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 4 April 2018 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 4 April 2018 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. In an attached self-authored statement, the applicant contends: a. He spent nine months at St. Albans Hospital in Brooklyn, NY because of an injury he sustained while in Vietnam. He received the Purple Heart. Upon leaving the hospital, he was assigned to light duty at Fort Dix, New Jersey. b. The noncommissioned officer in charge (NCOIC) placed him on kitchen duty, which was contrary to what he could do and what the doctor had ordered. He felt as a combat infantry Soldier, he should have been assigned something in keeping with his doctor's orders. c. He now realizes he was suffering from post-traumatic stress disorder (PTSD) and struggling to deal with the physical limitations associated with his injury. He went to see a psychiatrist and left feeling even more confused. After leaving the psychiatrist's office, he went directly to the closest bus station and rode the bus home. d. Five years later, the Federal Bureau of Investigations (FBI) took him in for out processing. It was his understanding that his undesirable discharge would automatically turn into a general discharge. He was a young kid who had just gotten back from war, suffering from PTSD, and recovering from a dislocated hip. At the time, he thought the best solution was to walk away from his problems. e. He knows now that he should have been more open about what he was experiencing. Since separating from service, he has worked in hospitals for 25 years, which he is very proud of. The majority of his career he has been a pediatric respiratory therapist. He has performed occasional volunteer work. He has never been arrested or in trouble with the law. While in the military, he displayed good conduct, professional courtesy and had strong comradery with all personnel. Other than his early departure, he was never in any trouble. He lives a moral and ethical life. 3. The applicant was inducted into the Army of the United States on 6 March 1968. Upon completion of his initial entry training, he was assigned to Company B, 3rd Battalion, 22nd Infantry Regiment, Republic of Vietnam. 4. The applicant served in the Republic of Vietnam from 11 August 1968 through 30 October 1968. He was wounded in combat operations on 17 September 1968 and was awarded the Bronze Star with "V" Device for his heroic actions. 5. As a result of being injured in combat on a second occasion, the applicant was medically evacuated on 28 October 1968, for treatment at the U.S. Naval Hospital, St. Albans, NY. He was awarded the Purple Heart. 6. Special Orders 134, issued by Headquarters, U.S. Army Medical Detachment, Naval Hospital, St. Albans, NY on 28 July 1969, returned the applicant to duty at Fort Dix, New Jersey. 7. The applicant's service record includes a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 26 June 1970, which indicates he was reported absent without leave (AWOL) on 2 September 1969. 8. The applicant was returned to military control through apprehension by military authorities on 30 July 1975. 9. Court-martial charges were preferred against the applicant on 31 July 1975 for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 2 September 1969 through on or about 30 July 1975. 10. The applicant underwent a medical examination on 31 July 1975. The relevant Standard Form (SF) 93 (Report of Medical History) indicates he self-reported that he was in good health. The corresponding SF 88 (Report of Medical Examination) shows he was found qualified for separation. 11. The applicant consulted with legal counsel on 1 August 1975. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his behalf. In a self-authored statement, he noted that he served in Vietnam and was wounded. He was sent to St. Albans for approximately nine months. Although he was not yet capable, he was returned to light duty. There was no distinction between light duty and full duty. He went AWOL because of the abusive treatment and to keep from going insane. He had reached his limit and could not spend another day. 12. The applicant's immediate and intermediate commanders recommended approval of the request for separation under the provisions of Army Regulation 635-200, Chapter 10, and further recommended that he be issued a DD Form 258A (Undesirable Discharge Certificate). 13. The separation authority approved the applicant's request for discharge on 22 August 1975, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed the applicant's reduction to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate. 14. The applicant was discharged on 3 September 1975, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial. His DD Form 214 confirms he was discharged in the grade of private/E-1 and his service was characterized as UOTHC. He was credited with one year and seven months of active service. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board (ADRB) or the ABCMR requesting a change in his or her discharge and/or service characterization. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 17. The ADRB denied the applicant's request for an upgrade on 9 June 1982. 18. The Army Review Board 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: a. Based on liberal consideration guidance, the applicant’s 30% service connected PTSD and nexus between PTSD and avoidance mitigate the basis for separation. Accordingly, an upgrade is recommended. b. Due to the period of service, active duty electronic medical records are void. Active duty hard copy medical records are unavailable. c. The applicant is 30% service connected for PTSD. 19. 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: 1. After reviewing the application and all supporting evidence, the Board found that full relief was warranted. 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 ARBA Medical Advisory opinion. The Board found the applicant’s service-connected PTSD, compelling statement, post-service honorable conduct and evidence of honorable service, in the form of valorous service as a combat veteran in Vietnam, to be compelling. The Board agreed that the applicant’s case warrants liberal consideration and clemency in that the applicant’s PTSD and valorous wartime service mitigated the misconduct resulting in the discharge characterization. The Board agreed to upgrade the applicant’s discharge characterization to Honorable. 2. During deliberations, the Board found evidence that the applicant’s DD Form 214s were missing important information about the applicant’s wartime service. a. The evidence confirms the applicant participated in one campaign during his service in Vietnam, thus he is entitled to one bronze service star to be affixed to his Vietnam Service Medal (VSM). b. The evidence of record confirms he met the regulatory requirements for award of the Combat Infantry Badge. c. The evidence of record shows the applicant was assigned in Vietnam during a period for which his unit was awarded the following awards, which are not listed on his DD form 214. (1) Presidential Unit Citation (2) Valorous Unit Award (3) RVN Gallantry Cross with Palm Unit Citation. (4) RVN Civil Actions Honor Medal BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to reflect: * item 9c (Separation Authority and Reason): Army Regulation 635-200, paragraph 5-3 – SPD JFF * item 9e (Character of Service): Honorable * item 9f (Type of Certificate Issued): DD Form 256 * item 10 Reentry Code): 1 * adding to item 26 (Decorations, Medals, Badges, Commendtions, Citations and Campaign Ribbons Awarded or Authorized: o CIB o Presidential Unit Citation o Valorous Unit Award o RVN Gallantry Cross with Palm Unit Citation o RVN Civil Actions Honor Medal 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 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) AR20180008473 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008473 7 ABCMR Record of Proceedings (cont) AR20180008473 6