ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180013852 APPLICANT REQUESTS: The applicant requests, in effect: * reconsideration to upgrade his under other than honorable conditions (UOTHC) discharge to honorable * reinstatement to the rank and pay grade of sergeant first class (SFC)/E-7 * to change his reenlistment code from RE-3 to RE-1 * a personal board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Post-traumatic stress disorder (PTSD) and Agent Orange symptoms * List of issues showing his discharge was unjust * Self-written statement * Supporting statements * Discharge certificates 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 AC96-07752 on 8 January 1997 and AC96-07752A on 23 April 1997. 2. The applicant states: a. He is listing below a series of "issues" which, in his opinion, are reasons why he believes the level of discharge that he received was unjust. Please consider these when making the decision on his case. He asserts: * his conduct and efficiency ratings were better than average * he received four Army Good Conduct Medals and was promoted to SFC * he served as a drill sergeant, and also received numerous awards for his service in the Republic of Vietnam * he served in Germany and was assigned to special duties * after being discharged from the Army, he completed the Police Academy * his reduction to pay grade E-1 was excessive * he repeatedly requested a transfer from a battalion that trained females and was turned down; he had just completed a divorce and requested the he not be exposed to females b. His military career began at the age of 17 and spanned over 13 years during which time he received three Honorable Discharges and served three years in Vietnam. He was assigned in Germany for 39 months and the remainder of his career was served stateside. His divorce was extremely stressful. He reenlisted and volunteered for drill sergeant duty at Fort Sill, OK. c. The circumstances surrounding the UOTHC discharge occurred during the Christmas Holidays of 1980. Six female trainees from his company who had not left post for the Holiday, had come to his apartment for a few drinks before going home. The first sergeant and other cadre members came to his apartment and informed him that he was going to be charged with fraternization. Because of the mental state that he was in, he did not respond in a logical manner. He refused non-judicial punishment (NJP), under the provisions of Article 15 of the uniformed code of military justice (UCMJ), and demanded a courts-martial instead. When the papers were drawn up for the courts-martial, he told his chain of command that he would rather receive a chapter 10 discharge in-lieu of the courts-martial because he no longer desired to serve in the military. This action, inconsistent with his usually professional performance, he thinks was as a result of the recent divorce and what he now knows to have been PTSD, as a result of his military service in Vietnam. He is now 100 percent disabled, total and permanent. d. Looking back, there are many things he would like to have done differently, but that decision, above all, was the most damaging and most regrettable of any decision that I had made. His career had been very rewarding and he had served 13 years of service to his country only to have it end with such indignity. He feels that had he not been under such a mental and emotional strain from the divorce and the grueling hours that he was working as a drill sergeant, this incident would not have happened. This was an isolated incident and in no way reflects his moral character or his professionalism. What he did was not right, but he also thinks the punishment for this act was excessive. e. Although he does not hold ill feelings for the military or the officers who carried out their duties, he feels that the result of this punishment was more severe than was required for the circumstances. When he told them of his intent to get out of the military, they [his chain of command] told him that they would have to say some things which were very degrading and that he would have to agree in order for them to get him out. At that time, all he wanted was to get out and get away from my ex-wife and her husband. Looking back he regrets having done this and for this reason he is asking for clemency because he feels that it is an injustice for him to continue to suffer the consequences of this type of discharge for a moment's indiscretion. f. He has received education benefits which were awarded to him after leaving the military. As a result, he thought he would still be given all his benefits as a result of his three previous honorable discharges. When he called the Veterans Administration (VA) Hospital a few days ago to see if he could get United Services Automobile Association (USAA) Insurance and qualify for burial at a national cemetery, he was told that he would have to have his discharge upgraded before this could be done. 3. On 11 January 1968, the applicant enlisted in the Regular Army for a period of 3 years. He immediately reenlisted on 18 March 1970 for 6 years. 4. In May 1976, he accepted NJP under the provisions Article 15 of the UCMJ, for driving under the influence and causing an accident on 29 March 1976. His punishment consisted of a reduction to sergeant/pay grade E-5 (suspended) and a forfeiture of pay for 2 months. 5. On 24 November 1976, the applicant immediately reenlisted for 3 years. He also immediately reenlisted on 7 May 1979 for 4 more years. 6. On 12 April 1980, the applicant was awarded the Drill Sergeant Identification Badge. He was promoted to SFC/E-7 with a date of rank of 12 July 1980 and an effective date of 1 August 1980. 7. On 30 September 1980, he received a Letter of Reprimand for improper performance of duty by abusing Soldiers with medical profiles. 8. On 19 December 1980, he was flagged pending court-martial action. 9. On 22 December 1980, he was released from the Drill Sergeant Program for his failure to maintain high standards of military professionalism and conduct and a major infraction of training policy. The record states he used abusive language to the trainees, and the applicant and another noncommissioned officer transported several female trainees to his apartment off-post and consumed alcoholic beverages. It further states that the applicant had intercourse with one female trainee. He elected not to make a statement or rebuttal. 10. The applicant states he was offered NJP under the provisions of Article 15 of the UCMJ; nevertheless, he refused and demanded trial by court-martial. 11. His record does not contain a separation packet; however, a DD Form 214 shows he was discharged on 23 January 1981 in the rank and pay grade of private/E-1, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial. He was given an under other than honorable conditions character of service and a reenlistment code of RE-3. He completed 13 years and 13 days of creditable service. The applicant was awarded or authorized the: * Bronze Star Medal (2nd award) * Air Medal * Army Commendation Medal (2nd award) * Army Good Conduct Medal (4th award) * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Drill Sergeant Identification Badge * Overseas Service Bars (6) * Expert Marksmanship Badge with M-16 Rifle Bar 12. On 8 January 1997, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s request for an upgrade of his discharge. 13. On 23 April 1997, the ABCMR denied his request for reconsideration to upgrade his discharge. 14. On 28 February 2003, the ABCMR reviewed the applicant’s request to upgrade his discharge and determined no substantial relevant evidence had been submitted that showed fraud, mistake of law, mathematical miscalculation, manifest error, or if there existed substantial relevant new evidence discovered contemporaneously with or within a short time after the Board's original decision. The Board returned his application without action. 15. In support of his case, the applicant provided a list of PTSD and Agent Orange symptoms, a list of issues showing his discharge was unjust, letters of support, and discharge certificates, which were provided to the Board. 16. On 3 December 2018, the Army Review Boards Agency (ARBA), Case Management Division (CMD), requested the applicant provide a copy of the medical documents that supported his issue of PTSD. He did not respond. 17. On 3 September 2019, the ARBA Psychologist reviewed this case and provided an advisory opinion, which was provided to the Board. It states, in pertinent part: a. The documentation reviewed included the applicant's ABCMR application, the electronic VA medical record (Joint Legacy Viewer (JLV)), the hardcopy military personnel and medical records. The electronic military medical record was not in use during his time in service. b. A review of the electronic VA medical record indicated the applicant was not listed in the JLV system. The applicant did not have a service-connected disability rating. c. The reviewed documents do not support the existence of a behavioral health condition at the time of discharge. The applicant's records indicate he did meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The medical advisor further added that, even if the applicant had a diagnosis of PTSD, PTSD is not considered a mitigating factor for the misconduct that resulted in his discharge. 18. On 4 September 2019, the Army Review Boards Agency provided a copy of the medical advisory to the applicant and gave him the opportunity to submit comments or rebuttal. He did not provide a response. 19. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army. The regulation states 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. 20. Army Regulation 635-200, Chapter 10 states, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may voluntarily submit a request for a discharge 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 was authorized, an under other than honorable conditions discharge was normally considered appropriate. a. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. b. 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. 21. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; eligibility: qualified for enlistment if all other criteria are met. * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; eligibility: ineligible unless a waiver is granted. 22. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 23. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement and claim of PTSD, his record of service to include previous honorable discharges and service in Vietnam, the frequency and nature of his misconduct and the reason for his separation. The Board considered the review and conclusions of the medical advising official and the absence of medical evidence supporting the applicant’s stated PTSD claim. The Board concurred with the advising official and found insufficient evidence of in-service mitigation for his misconduct; the applicant provided no evidence to post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service, rank and reenlistment code reflected on the applicant’s DD Form 214 was not in error or unjust. 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 relief was not warranted. 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army. The regulation states 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 states, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may voluntarily submit a request for a discharge 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 was authorized, an under other than honorable conditions discharge was normally considered appropriate. a. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. b. 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. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows: * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; eligibility: qualified for enlistment if all other criteria are met. * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; eligibility: ineligible unless a waiver is granted. 4. 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// ABCMR Record of Proceedings (cont) AR20180013852 7 1