ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20180014611 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) 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) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect, his last tour from Vietnam was a hardship for him. He was ill and depressed. He made a mistake but most of his service was honorable. 3. The applicant enlisted in the Regular Army on 24 May 1968 and was honorably discharged on 28 March 1969 for immediate reenlistment. 4. The applicant served in Vietnam from 17 June 1970 until 7 May 1971. 5. The applicant accepted nonjudicial punishment on the 19 November 1970, for failing to obey a lawful order and wrongfully, willfully, and unlawfully impersonate an agent of superior authority of the Army. 6. The applicant’s record contains a memorandum, dated 8 November 1971, which shows the applicant received nonjudicial punishment on 9 August 1971, for being absent from his appointed place of duty and a Summary Court-Martial for being absent without leave. 7. On 9 November 1971, the applicant was charged with 2 specification of failing to go at the prescribed time to his appointed place of duty and 1 specification of being absent without authority. 8. On 22 November 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 10. He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He acknowledged he understood the elements of the offense he was charged with and he was: * making the request of his own free will * making a statement in his own behalf * advised he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 9. He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veterans' benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 10. On 23 November 1971, additional charges were added to the applicant’s Special Courts-Martial. The charges consisted of 3 additional charges of failing to go at the prescribed time to his appointed place of duty and 1 charge of disobeying a written letter from the company commander. 11. On 10 December 1971, the appropriate authority approved the applicant's voluntary request for discharge and directed that he be reduced to the rank of private/pay grade E-1 and the issuance of an Undesirable Discharge Certificate 12. On 8 January 1972, the applicant was discharged from the Army of the United States as Undesirable. His record is void of a DD Form 214 (Armed Forces of the United States Report of Separation) for this period of service. 13. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 14. On 28 June 2019, the ABCMR obtained an advisory opinion from a medical advisor with Army Review Boards Agency (ARBA), who states, in part, no data supports post- traumatic stress disorder (PTSD) or any other behavioral health condition. There is no mitigating factor in the misconduct that resulted in the applicant’s discharge from the military. There was no indication the applicant failed to meet medical retention standards conditions in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The complete medical advisory is available for review by the Board. 15. On 8 July 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 16. Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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. 17. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation establishes the Army PDES 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 or her office, grade, rank, or rating. 18. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense 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, his record of service to include service in Vietnam, his reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the review and conclusion of the medical advising official. The Board found insufficient evidence of in-service mitigation for his misconduct and the applicant provided no evidence of post-service achievements of letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received when discharged was not in error or unjust. 2. 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. 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 Army Board for Correction of Military Records (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 administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment 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 had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished 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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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. 4. 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 (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 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 6. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. ABCMR Record of Proceedings (cont) AR20180014611 3 1