BOARD DATE: 3 April 2020 DOCKET NUMBER: AR20180013699 APPLICANT REQUESTS: correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the following: * his rank/grade from private/E-1 to private E-2 * his date of induction as 1968 in lieu of 1971 * his place of entry into active service as Fort Polk, LA in lieu of Montgomery, AL * unspecified correction to his periods of lost time * his narrative reason for separation as physical disability * his character of service as honorable * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 all the information on his DD Form 214 is incorrect. a. He enlisted in the Army in 1968, at the age of 15, thus his date of entry is incorrect. His rank/grade was private/E-2 when he entered the Army and he completed basic combat training (BCT) upon entry into the Army at Fort Polk, LA. His DD Form 214 ought to reflect these changes. b. He also states he had a serious injury and had lost his DD Form 214, but now he has a copy of it. His DD Form 214 ought to reflect an honorable discharge due to a medical condition for when he files a disability claim. 3. A DD Form 47 (Record of Induction), shows the applicant was inducted into the Army of the United States on 13 January 1971, in Montgomery, AL, at the age of 19. 4. His DA Form 20 (Enlisted Qualification Record) shows: * his rank/grade to have been private/E-1, with a date of rank of 13 January 1971 * he reported to BCT at Fort Polk, LA on 25 January 1971 5. There is no evidence of record the applicant was ever advanced in rank/grade to private/E-2 or that he ever completed BCT. 6. U.S. Army Training Center, Infantry, Fort Polk, LA Summary Court-Martial Order Number , shows: a. The applicant (listed as a private/E-1) was arraigned and tried before a summary court-martial with convened at Fort Polk LA, on 17 June 1971. b. He was charged with and found guilty of absent without leave (AWOL) from his BCT unit from on or about 29. c. On 17 June 1971, he was sentenced to confinement at hard labor for one month and forfeiture of $89.00 pay per month for 1 month. 7. U.S. Army Training Center, Infantry, Fort Polk, LA, Summary Court-Martial Order Number shows the unexecuted portion of the applicant’s sentence to confinement at hard labor for 1 month, adjudged on 17 June 1971, was vacated. The prisoner would be confined in the U.S. Army Stockade, Fort Polk, LA and the confinement would be served therein, or elsewhere, as competent authority may direct. 8. On 19 December 1971, the applicant completed a statement of AWOL, acknowledging the following: a. He had the right to say nothing at all about the periods of AWOL with which he had been charged. He was advised that the processing of his request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, request for discharge for the good of the service in lieu of trial by court-martial, could be accomplished more rapidly if he volunteered information concerning his AWOL. b. Stating he understood his rights, he volunteered that he departed AWOL from his BCT unit at Fort Polk, LA on or about 25 June 1971 and remained AWOL until he was returned to military control on or about 18 July 1971. c. He again departed AWOL from the Personnel Control Facility at Fort Polk, LA, on or about 25 July 1971 and remained absent until returned to military control on or about 22 October 1971. 9. Headquarters, U.S. Army Training Center and Fort Campbell Special Orders Number 303, dated 28 December 1971, reassigned the applicant to Fort Campbell, KY, effective 29 December 1971, for the purpose of separation processing. 10. The applicant’s DD Form 214 shows the following: * his date of induction was 13 January 1971 * his place of entry into current active service was Montgomery, Alabama * his rank/grade was private/E-1 * he was discharged on 29 December 1971, after 9 months and 2 days of net active service * the station or installation at which his discharge was effected was Fort Campbell, KY * his reason and authority for his discharge was for the good of the service in lieu of court-martial, under the provisions of Army Regulation 635-200, chapter 10 * his service was characterized as under other than honorable conditions * his last duty assignment and major command was Third U.S. Army, U.S. Army Personnel Control Facility * his non-pay periods of lost time were 29 March 1971 -18 June 1971, 23 July 1971 – 13 September 1971, and 10 October 1971 – 21 October 1971 11. His available service records from this period do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 12. On 22 March 2019, the Army Review Boards Agency sent the applicant a letter requesting copies of any of his medical documents supporting his request for physical disability discharge, but he did not respond. 13. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s iPERMS records and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, with primary MOS 57A10 Duty Soldier, is requesting a discharge upgrade to Honorable Under Condition Medical (or discharge for a medical disability). The applicant has no encounters in AHLTA and no records in iPERMS. A review of records through JLV shows the veteran has no service connected disabilities. However, the VA record review shows a 09 May 2001 mental health clinic note which documents the veteran was treated for PTSD by a private doctor. Stressor: Witnessing 2 buddies get killed during training exercises at Ft Polk: They were learning to “low crawl” and were hit with live ammunition when their backs were hunched too high. Before being sent to Vietnam he went AWOL- said he no longer trusted the Army. Said he was placed on a psychiatric ward on the base and stayed in medical holding until he was discharged (Records were lost). He said he had no problem with anger issues before military service. His offenses during service were periods of AWOL. After service, he was in Substance Abuse Treatment (twice) at the VA. He was in Kent County Jail for attempted murder from 29 Jun 2000 to 12 Jan 2001 (had 2 prior charges). Based on the information available for review and in accordance with the 03 Sep 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant’s military medical history DOES support the existence of PTSD at the time of discharge and the PTSD condition mitigates the misconduct (AWOL) that resulted in the applicant’s discharge from the military. Since service treatment records are not available, a definitive statement on whether the condition met retention standards cannot be made, however, the presumption is the condition DID meet medical retention standards IAW AR 40-501. 14. Pertinent Regulations and Policy a. 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; or sexual harassment. 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 b. 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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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. 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. 15. In reaching its determination, the Board should also consider the statements and evidence submitted by the applicant, along with his military service record, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence on the records, a medical review and published DoD policy for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, record of promotions, the frequency and nature of his misconduct, his summary court-martial and the reason for his separation. The Board considered the review by the ARBA medical advisor and the conclusion that the applicant’s record supports the existence of PTSD while he served, but there was insufficient evidence to show that the applicant failed medical retention standards as a result. Based on a preponderance of evidence, the Board found insufficient evidence to determine that his rank/grade at discharge, his date of induction, his place of entry into active service, the periods of lost time or the narrative reason for his separation at the time of discharge were in error or unjust. Based upon the review of the medical advising official and the nature of his misconduct, the Board determined that liberal consideration should be applied and that an upgrade of his character of service was appropriate. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period of service ending 29 December 1971 to reflect in item 13a. – “General, under honorable conditions” vice “under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to relief in excess of that stated above. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents that will be furnished each individual who is separated from the Army, to include the DD Form 214, and establishes standardized procedures for the preparation and distribution of these documents. a. The general instructions for the preparation and distribution of the DD Form 214 state all available records will be used as a basis for the its preparation. b. The specific instructions for completion of the numbered items on the DD Form 214 include the following: * item 5a (Grade, Rate or Rank), enter active duty grade, rate, or rank at the time of separation * item 5b (Pay Grade), enter pay grade at the time of separation * item 6 (Date of Rank), enter pay grade at the time of separation * item 10c (Date Inducted), enter date of induction * 11b (Station or Installation at Which Effected ), enter the Army station or installation where discharged * item 11c (Reason and Authority), enter the reason for separation based on the regulatory or statutory authority * item 12 (Last Duty Assignment and Major Command), enter the individual’s last unit of assignment and the title of the major command or agency having jurisdiction over that organization * item 13a (Character of Service), authorized entries are honorable, under honorable conditions (general), under other than honorable conditions, bad conduct, dishonorable * item 19 (Grade, Rate or Rank at Time of Entry into Current Active Service) enter grade, rate, or rank at the time of induction or enlistment for current period of service * item 20 (Place of Entry into Current Active Service (City and State) enter city and State where current entry into active service took place * item 25 (Education and Training Completed), list all in-service training successfully completed during this period of service * item 26a (Non-Pay Periods/Time Lost), enter all lost time during the period of service 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 5. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one- time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. e. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. 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. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013699 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1