ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20180014597 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 18 October 2018 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 14 April 1970 and 10 June 1971 * Department of Veterans Affairs (VA) Initial Post-Traumatic Stress Disorder (PTSD) ? DSM?V Disability Benefits Questionnaire, dated 30 June 2017 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. The applicant states he now knows it was wrong to be absent without leave (AWOL). He was young, immature, and unbeknownst to him, he was suffering from PTSD. He requests his second period of service be upgraded based on his prior period of honorable service and his PTSD. He was drinking heavily following his return from Vietnam; he broke into a house to steal alcohol, resulting in his civilian charge of house breaking. He signed the request for discharge after being threatened with being sent back to Vietnam as punishment. He has been denied VA benefits because his entire period of service is characterized as UOTHC. 3. The applicant was inducted the Army of the United States on 4 September 1968. He served in the Republic of Vietnam from 28 January 1969 through 27 January 1970, where he was awarded the Purple Heart, three Army Commendation Medals, and the Combat Infantryman Badge, in addition to the standard period service medals. 4. The applicant received nonjudicial punishment (NJP) on 3 May 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping on sentinel duty, on or about 27 April 1969. 5. The applicant was honorably discharged on 14 April 1970, for the purpose of immediate enlistment in the Regular Army. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 6. The applicant enlisted in the Regular Army on 15 April 1970. 7. Court-martial charges were preferred against the applicant on 5 March 1971 for violations of the UCMJ. His DD Form 458 (Statement of Charges) shows he was charged with being AWOL from on or about 5 July through on or about 2 September 1970, and from on or about 5 September 1970 through on or about 2 March 1971. 8. The applicant consulted with legal counsel on or about 24 May 1971. 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 an under other than honorable conditions 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 lieu of trial by court- martial. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He submitted a statement in his own behalf citing his prior period of honorable service and his awards and decorations. He noted that he was serving 5 years of probation on a civilian charge of breaking and entry and theft. Violation of this probation would result in his incarceration for 22 months. Because of this sentence, he felt it was in the best interests of the military to request discharge. 9. The separation authority approved the applicant's request for discharge on 3 June 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged UOTHC. 10. The applicant was discharged on 10 June 1971. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and his service characterization was UOTHC. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1. 11. 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. 12. The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 13. The applicant's file was not reviewed under the DoD SDRP, despite meeting the criteria for a mandatory upgrade under this program, having completed a normal tour of duty in Southeast Asia, having been wounded in action, having been awarded a military decoration other than a service medal, and having received an honorable discharge for his first period of service. 14. The applicant underwent a VA PTSD evaluation on 30 June 2017, wherein he was diagnosed with PTSD. 15. In the processing of this case, an advisory opinion was provided by the Army Review Boards Agency (ARBA) staff psychologist. a. This official opined: (1) In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military medical records do support the existence of PTSD at the time of discharge; (2) The applicant's medical records indicate that the applicant DID meet medical retention standards IAW Army Regulation 40-501 (Standards of Medical Fitness); (3) The applicant's diagnosis of PTSD is a mitigating factor in the misconduct that resulted in the applicant's discharge from the military. b. A copy of the advisory opinion was referred to the applicant. There is no indication he elected to submit any additional comments or documentation. 16. The Board should consider the applicant's statement, provided evidence, and the entirety of his record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. 1. Regarding the applicant’s request for a discharge upgrade, the board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, and found that the applicant’s case warrants clemency. The Board found that prior to the misconduct, the applicant had two full honorable enlistments, served in combat, receiving a Purple Heart, a CIB, and had three ARCOMs. The Board agreed that the applicant’s prior honorable service mitigated the misconduct resulting in the discharge characterization and the applicant’s discharge should be upgraded to honorable. 2. Additionally, the Board found that important information is missing from the applicant’s DD form 214, including his third ARCOM and additional Vietnam service awards. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 2. correcting his DD Form 214 with effective date 14 April 1970 by amending: (a) item 9e (Character of Service): “Honorable” vice “Under Other Than Honorable Conditions,” (d) item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) as follows: (1) delete “ARCOM (1st OLC)” and add “ARCOM (3rd OLC)”, (2) delete “Vietnam Service Medal” and add “Vietnam Service Medal with four Bronze Service Stars,” (3) add RVN Civil Actions Honor Medal, FC, (4) add Republic of Vietnam Gallantry Cross with Palm Unit Citation, and (5) add Meritorious Unit Commendation 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): N/A 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. 3. Army Regulation 635-200 sets 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides 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 UOTHC is normally considered appropriate. 4. 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, 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. 5. The Secretary of Defense provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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, TBI, sexual assault, or sexual harassment. 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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. 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) AR20180014597 7 1