ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180014485 APPLICANT REQUESTS: * Reconsideration of his earlier request to upgrade his general discharge under honorable conditions to honorable * As a new request, correct his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) by changing the first three digits of his social security number (SSN) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * SSN Card * Department of Veterans Affairs (VA) letter 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 AC78-04344 on 20 September 1978. 2. The applicant states he believes he has been ill and received treatment from the VA since his discharge; he has been in receipt of full compensation for many years and still suffers from post-traumatic stress disorder (PTSD). In addition, he states his SSN was corrected in Department of Defense (DOD) records; in effect, once the Social Security Administration alerted him to the mistake, the VA said it would be best to leave it the way it was because all of his records were under the incorrect SSN. USAA (United Services Automobile Association) told him to change his discharge in order to receive benefits from them. 3. The applicant provides his SSN card showing the first three digits." He also has included a VA letter affirming he has a combined disability rating of 100 percent. 4. The applicant's service records show: a. After obtaining his parent's written consent, the applicant enlisted into the Regular Army for a 3-year term on 15 November 1968; he was 17 years of age. On completion of initial training, orders assigned him to Fort Knox, KY; he arrived on or about 18 June 1969. b. Effective 27 June 1969, his Fort Knox chain of command promoted him to private first class (PFC)/E-3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions: * 6 November 1969 – failing to obey a lawful general regulation by operating a vehicle without a post inspection or valid operator's license * 17 November 1969 – two specifications of failing to be at his appointed place of duty at the time prescribed c. In or around December 1969, orders reassigned him to the U.S. Army Overseas Replacement Station (USAOSREPLSTA) at Oakland, CA, for further assignment to Vietnam; on 26 January 1970, the USAOSREPLSTA reported him as absent without leave (AWOL) because he failed to show on his reporting date. On 29 January 1970, he returned to military control at the USAOSREPLSTA. On 31 January 1970, he accepted NJP for being AWOL from 26 through 29 January 1970 (4 days). d. He transferred to Vietnam and arrived on 2 February 1970. While in Vietnam, he accepted NJP three times: * 15 July 1970 – absenting himself for 45 minutes from his unit's mandatory reveille formation * 27 July 1970 – leaving his guard post with the intent of abandoning that guard post * 31 July 1970 – absenting himself from his unit for 4 hours; willfully disobeying his commander's order to restrict himself to the unit's area; and willfully disobeying Staff Sergeant (SSG) F__ E. Kl__'s order to restrict himself to the unit's area e. On 6 August 1970, the applicant verbally threatened SSG F__ E. Kl__, then went to the unit motor pool and swung a knife at Specialist Four (SP4) D__ R. Ri__; following this, he threw down the knife and left. PFC R__ E__ was ordered to bring the applicant to the Orderly Room; on finding the applicant and telling him he had to report to the Orderly Room, the applicant placed the muzzle of his loaded M-16 rifle to his throat. A struggle ensued and PFC R__ E__ was able to take away the applicant's M-16. The applicant then took a knife from his bunk and threatened PFC R__ E__. The incident ended with the arrival of SSG F__ G__. f. On 8 August 1970, the applicant's chain of command referred him for a psychiatric consult; his leadership reported he was wandering around the unit area with a loaded weapon and threatening his fellow Soldiers. The applicant had received three NJP actions within the past two weeks and, 2 days prior, had overdosed on Librium (a sedative for treating anxiety and alcohol withdrawal symptoms). The psychiatrist noted the following: (1) Impression – the applicant had an emotionally unstable personality that was chronic and severe in nature; it was manifested by impulsivity, intolerance to close relationships, marked conflict with authority figures, and a tendency towards direct aggressive resolution of problems with recurring suicidal-homicidal fantasies. (2) Comment – the applicant did not have a psychiatric disease that warranted processing through medical channels, but he had a life-long character disorder of relatively severe proportions. The psychiatric recommended separation under Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), based on unsuitability. g. On 9 August 1970, the applicant's commander did the following: * Initiated bar to reenlistment action against the applicant, based on the applicant's previous NJP actions, and his habitual misconduct and disregard for authority; the bar to reenlistment was subsequently approved * Issued the applicant a letter of reprimand, stating, over the past 90 days, the applicant's conduct was unacceptable; he failed to improve, despite all rehabilitative efforts; in addition, the applicant had become violent and suicidal; the commander was initiating separation action * Advised the applicant, in writing, of his intent to separate him for unsuitability under AR 635-212; the commander's basis was the applicant's continued threatening and chronic behavior h. On 10 August 1970, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for his separation action, the rights he had under the separation process, and the effect of waiving those rights. The applicant waived his right to have his case considered by a board of officers, to appear before the board of officers, and to be represented by counsel. He elected not to submit a statement in his own behalf. i. In his recommendation to the separation authority, the applicant's commander wrote he was recommending the applicant for separation due to unsuitability; a discharge for unfitness was not considered appropriate because the applicant's character and behavior disorders rendered him incapable of performing the normal tasks of Soldiering. The commander concluded his comments by recommending the issuance of an Undesirable Discharge Certificate under other than honorable conditions. j. On 12 August 1970, the applicant underwent a separation physical in which the physician noted the applicant had an "inadequate personality." The physician found the applicant was qualified for separation under AR 635-212. k. On 24 August 1970, the separation authority approved the commander's recommendation for separation based on unsuitability, per AR 635-212. The separation authority further directed the following: issue the applicant an Undesirable Discharge Certificate; reflect the separation program number (SPN) "28B" (Unfitness – Frequent Involvement in Incidents of a Discreditable Nature with Civil or Military Authority) on the applicant's DD Form 214; and reduce the applicant to the lowest enlisted grade. l. On 24 August 1970, orders reduced the applicant from PV2 to PV1. m. On 25 August 1970, the applicant was separated under other than honorable conditions. His DD Form 214 showed he completed 1 year, 9 months, and 7 days of his 3-year enlistment contract, with 4 days of lost time. The separation authority was AR 635-212, the SPN was "28B." The remarks section showed his Vietnam service (2 February until 25 August 1970) and he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960). n. A review of the applicant's service record shows, for the duration of his active duty service, only the SSN used was" in the first three digits was used. o. On 25 January 1971, he petitioned the Army Discharge Review Board (ADRB), requesting an honorable discharge. (1) He argued a psychiatrist had evaluated him during his Vietnam service, but his commander lost the medical certificate. He stated, during the 3 weeks following his discharge, he was hospitalized in a VA medical facility. (2) On 19 April 1971, the ADRB concluded the applicant's discharge was not proper and recommended the issuance of a general discharge under honorable conditions; in addition, the SPN should be changed to (Unsuitability – Character and Behavior Disorders). On 20 August 1971, the Officer of the Adjutant General issued the applicant an amended DD Form 214, reflecting a general discharge under honorable conditions and the SPN." p. On 20 April 1978, he applied to the ABCMR, requesting the Board to, in effect, change his general discharge from being based on unsuitability to one due to medical reasons. (1) He stated, while in Vietnam, he had a nervous breakdown; he underwent a medical examination and the doctor told him he would be getting a medical discharge. The doctor gave him a letter, with instructions to provide the letter to his nearest dispensary. On his return to his unit, his commander took the letter from him. In a couple of days, the commander had him sign papers; he later learned he was being discharged, but not for medical reasons. After his discharge, he spent a year receiving treatment at a civilian facility; this was because he was not eligible for care from the VA. His civilian doctors claimed he was totally disabled, but VA stated otherwise. (2) The Board obtained VA rating decisions and medical documentation that showed the applicant was initially diagnosed as having a schizoid personality with paranoid trends; the diagnosis was later revised to schizophrenia. The VA subsequently awarded him a 50 percent disability rating, effective in April 1971. (3) The Board determined the applicant was found to be physically fit prior to his separation. While a character and behavior disorder was indicated at the time, such a condition only rendered him administratively unfit, not unfit due to a physical disability. The Board further noted, although the VA eventually awarded him a disability rating for schizophrenia in 1971, a September 1970 VA evaluation did not find him to be disabled; rather, VA only affirmed he had a character and behavior disorder. Based on the foregoing, the ABCMR denied the applicant's request. q. On 24 June 2019, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The ARBA psychologist was able to review VA medical records via the Joint Legacy Viewer and found the applicant's disability rating was increased to 100 percent, effective 1 December 2017. (1) The ARBA psychologist stated, during the applicant's active duty service, it was likely he was experiencing the prodromal stage of schizophrenia (schizophrenia is characterized by three main phases: prodromal (i.e. early symptoms wherein the person shows gradual, non-specific changes in thoughts, behaviors, and functioning), active (characterized by hallucinations, paranoid delusions, and extremely disorganized behaviors), and residual (similar behaviors to the prodromal stage)). The symptoms associated with the prodromal stage could have had a significant impact on his behavior. (2) The applicant's service medical records do show the existence of PTSD or other medical conditions that would warrant referral into the Army's Disability Evaluation System (DES). His records also indicate, at the time of his discharge, he met medical retention standards, as outlined in AR 40-501 (Medical Fitness Standards). (3) Based on the foregoing, the ARBA psychologist affirmed the applicant's behavioral health conditions could be considered a mitigating factor for the misconduct that resulted in his discharge. r. On 27 June 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf. The applicant did not respond. 5. Regarding the applicant's request to amend his DD Form 214 to reflect a change in the first three digits of his SSN, all documents in the applicant's available service record show the only SSN used while he was on active duty was one with the first three digits of ." The Army has an interest in maintaining the historical accuracy of its records; as such, the data and information contained therein should reflect the conditions as they existed when those records were created. 6. During the applicant's era of service, commanders were authorized to use AR 635-212 to separate Soldiers with character and behavior disorders (now termed personality disorders); the regulation contained provisions for using either unfitness or unsuitability as the reason for discharge. Commanders used unsuitability for Soldiers who showed a lack of adaptability, due to their character and behavior disorder. For cases involving Soldiers whose behavioral conditions caused them to be involved frequent disciplinary incidents, the commander could separate for unfitness. a. In December 1976, based on a law suit, the Army changed its policies with regard to personality disorder separations; two Department of the Army (DA) memoranda (respectively issued in January 1977 and February 1978) prescribed Soldiers separated for unsuitability due to a personality disorder were to be retroactively issued honorable discharges; cases where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given were exempted. A less than fully honorable character of service was justifiable when the Soldiers had a general court-martial conviction by a general court-martial, or was convicted by more than one special court-martial. b. In 1971, the ADRB upgraded the applicant to a general discharge under honorable conditions, and changed the SPN from unfitness to unsuitability, due to a character and behavior disorder. c. In 2019, an ARBA psychologist found the applicant's behavioral health conditions could be considered a mitigating factor for the misconduct that resulted in his discharge. 7. 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 liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the medical assessment prior to his discharge, the reason for his separation and whether to apply liberal consideration. The Board considered his statement regarding the correction of his SSN, but found no supporting documentation such as a letter from the Social Security Administration that would support his claim. The Board considered his previous upgrade by the ADRB and the conclusions of the medical advising official regarding his condition as it may have existed at the time of his service. Based on a preponderance of evidence, the Board determined that the character of service he received was still too harsh and required further upgrade. The Board advises that a copy of this decisional document will be kept with the applicant's record and should serve to clarify any questions or confusion as to why the SSN found in his service record is different from the one he is currently using. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. 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. In addition to the corrections stated in the Administrative Note(s) that follow, 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 25 August 1979 to show in item 24 (Character of Service) – “Honorable”. 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 correction of the applicant’s SSN. 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Vietnam Winter-Spring 1970 (1 November 1969 to 30 April 1970) * Sanctuary Counteroffensive (1 May 1970 to 30 June 1970) * Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) 3. DA Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows all units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 4. As a result, amend his DD Form 214, ending 5 February 1970 as follows: a. delete the Vietnam Service Medal. b. add: * Vietnam Service Medal with three bronze service stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. AR 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court- martial, and no more than one special court-martial conviction. 3. Special Regulation 40-1025-2, in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 4. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, a DA memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second DA memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); 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 to 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. 7. 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 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. 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. ABCMR Record of Proceedings (cont) AR20180014485 11 1