ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180016092 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 AR20090002593 on 17 June 2009. 2. The applicant states during his tour in Vietnam and upon his return to the United States, he believes there was a personality conflict between himself and his superiors due to post-traumatic stress disorder (PTSD) and racial tension. His discharge should be upgraded due to his medical condition which was due to his military service. Prior to his discharge, he wanted to reenlist and return to Vietnam; however, his commander would not allow it. His counsel advised him to accept the discharge and it would be upgraded to general, under honorable conditions in 6 months. 3. The applicant enlisted in the Regular Army on 21 October 1969. He was honorably discharged on 28 June 1970 for the purpose of immediate reenlistment. At the time he had completed 8 months and 8 days of net active service this period. 4. The applicant served in Germany from 2 April 1970 to 11 August 1970 and in the Republic of Vietnam (RVN) from 18 September 1970 to 17 September 1971 5. Special Court Martial Order Number, issued by Headquarters, U.S. Army Transportation Terminal Unit, dated 16 June 1971, shows the applicant pled guilty and was found guilty of sleeping on his post on or about 1 June 1971. His sentence consisted of reduction to private first class, forfeiture of $100 per month for 1 month, and restriction for 30 days. 6. The applicant received non-judicial punishment on the following occasions: * 7 February 1971, for failing to go to his prescribed place of duty at the prescribed time and being absent from his place of duty without authority * 28 April 1971, for sleeping on his post as a sentinel * 21 May 1971, for sleeping on his post as a sentinel on two occasions * 26 July 1971, failing to obey a lawful general order * 19 January 1972, for failing to go to his appointed place of duty and the prescribed time and being absent without authority from his place of duty 7. On 19 June 1972, the applicant was charged with being absent without leave (AWOL) from 26 January 1972 to 31 January 1972 and from 1 February 1972 to 13 June 1972. 8. On 20 June 1972, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). The applicant’s request for discharge states he had not been subject to coercion with respect to his request for discharge. It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge and that the applicant elected to submit a statement in his own behalf. 9. On 27 June 1972, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. The commander also directed the applicant be reduced to the grade of private (E-1) and furnished an Undesirable Discharge Certificate. 10. On 29 June 1972, the applicant was discharged and his service characterized as under conditions other than honorable in accordance with the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 7 months, and 5 days of net active service this period; 8 months and 8 days of other service; and 2 years, 3 months, and 13 days of total service. He also had 147 days of lost time. 11. On 10 August 1982, the Army Discharge Review Board, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable. 12. On 22 October 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, based on a thorough review of the available records, there is insufficient information to determine if the applicant had a psychiatric condition while in-service contributing to his misconduct; there is no medical mitigation at this time. However, the Board could consider upgrading his characterization to General to allow him access to services. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. On 25 October 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate. 15. Army Regulation 635-200, 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. 16. 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 and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement regarding PTSD and racial tension, his record of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board considered the review and conclusions of the medical advising official and concurred with the assessment regarding a mitigating behavioral health condition. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of 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 the applicant received upon separation 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 to amend the decision of the ABCMR set forth in Docket Number AR20090002593 on 17 June 2009. 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. 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, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court- martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). 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. 2. 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. 3. 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180016092 4 1