ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE: 16 August 2019 

	DOCKET NUMBER:  AR20180016255


APPLICANT REQUESTS:  Through counsel, his under other than honorable conditions 
(UOTHC) discharge be upgraded to either an honorable discharge or an under 
honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Records Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 1 October 2018
*	Counsel Petition with Exhibits Enclosed [over 500 pages]

*	Table of Contents listing, Exhibit Index, Introduction, Factual Background, 
Argument and Conclusion
*	Exhibit A, Applicant’s Declaration, executed 1 May 2018
*	Exhibit B, Applicant’s Mental Health Evaluation, dated 9 August 2018  
*	Exhibit C, DD Form 214 (Report of Separation for Active Duty), for the 
period ending 18 April 1974
*	Exhibit D, 2 Character Witness Declarations, dated 16 February 2018 and 
16 September 2018
*	Exhibit E, Supplemental Guidance to Military Boards for Correction of 
Military/Naval Records Considering Discharge Upgrade Requests by 
Veterans Claiming Post Traumatic Stress Disorder, dated 3 September 
2014 ("Hagel Mem")
*	Exhibit F, 228 pages of Veterans Affairs Medical Records
*	Exhibit G, Clarifying Guidance to Military Discharge Review Boards and 
Boards for Correction of Military/Naval Records Considering Requests by 
Veterans for Modification of their Discharge Due to Mental Health 
Conditions and Sexual Assault or Sexual Harassment, dated August 25, 
2017 ("Clarifying Guidance")
*	Exhibit H, Applicant’s Military Service Records
*	Exhibit I, Army Regulation 135-178 (Enlisted Administrative Separations)
*	Exhibit J, Yale Law Journal Newsletter Article, In Need of Correction: How 
the Army Board for Correction of Military Records (ABCMR) Is Failing 
Veterans with PTSD

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 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, through counsel’s petition and exhibits:

a.	Counsel states in an introduction:

[The applicant] is a Veteran of the Vietnam War who has led a productive life 
as an upstanding citizen and devoted father and husband, despite enduring 
the shame of his other than honorable discharge and his struggle with Major 
Depressive Disorder (MDD) and Post Traumatic Stress Disorder (PTSD), 
which he developed as a result of his experiences in combat.  Because the 
circumstances of his discharge can be squarely attributed to PTSD and 
related symptoms, [the applicant] petitions the Board for an upgrade.

[The applicant] voluntarily enlisted, as an artilleryman in May 1968, when he 
was only 17 years old.  He deployed to Vietnam less than one year later, 
where he faced heavy combat and was ultimately injured by an enemy 
mortar.  [The applicant] was also involved in particularly traumatic incidents in 
which his unit inadvertently fired on friendly troops and innocent civilians.  As 
a result of these traumas and others described in greater detail below, [the 
applicant] developed classic symptoms of PTSD and depression upon 
redeploying to the United States in 1969.  He initially attempted to cope with 
these overwhelming experiences in garrison life at Fort Bragg, but when his 
mental health further deteriorated, he fled becoming absent without leave 
(AWOL) in August 1970.

Under the Hagel Memorandum and the 2017 Clarifying Guidance, when an 
applicant has shown that mental health condition(s) (here, PTSD and 
depression) reasonably existed during service, this Board must grant liberal 
consideration to whether that condition outweighs or explains the misconduct 
when considering a discharge upgrade.  The evidence shows that [the 
applicant’s] mental health conditions were the root cause of the misconduct 
that led to his discharge under other than honorable conditions.  In light of 
this, [the applicant] respectfully requests that the Board upgrade his 
characterization of service, and properly credit his otherwise faithful service to 
our country.

b.	Counsel provides a synopsis, of what he states is the applicant’s factual 
background:

[The applicant], was born in 1948 and was raised in a working-class family in 
Houston, TX.  He grew up very poor and, by the time he was a teenager, 
started to work to help support his family.  He worked as a field hand, picking 
fruits and vegetables in the rural areas near Houston.  He also washed dishes 
in restaurants.  His older brother was drafted to serve in Vietnam and he 
decided that he too wanted to serve his country.  In May 1968, when he was 
17 years old, [the applicant] voluntarily enlisted in the Army to help serve the 
war effort.  He attended basic training at Fort Bliss, TX.  He then attended 
artillery school in OK and opted to attend airborne school at Fort Benning, 
GA.  Despite the challenging program, he graduated from airborne school and 
ultimately received orders to deploy to Vietnam.  He deployed to Vietnam in 
November 1968, just over two months after his 18th birthday.  After attending 
one week of jungle training, he traveled to the front where he would serve for 
the next year in various artillery positions.  However, barely one month after 
his arrival at the front, [the applicant’s] unit was ambushed; they sustained 
heavy casualties during the attack and [the applicant] was nearly killed.  An 
82 millimeter shell exploded near him, knocking him down and inflicting 
shrapnel wounds all over his body.  His right leg became paralyzed and, 
when he looked down, he realized that his clothes were soaked with blood 
that was flowing from his nose, mouth, ears and numerous lacerations.  In 
that moment, he believed he would die and he began to pray to God for 
forgiveness.  The fighting continued as other Soldiers attempted to help [the 
applicant] by bandaging his wounds and carrying him to safety.  They made it 
to a bunker and waited for rescue under a constant barrage of enemy fire.  
[The applicant] remained convinced that he would die.  Eventually, a 
helicopter arrived to take the survivors to safety and [the applicant] was 
transported to a hospital where he later underwent surgery to remove the 
shrapnel lodged throughout his body and subsequently regained the use of 
his legs.  Doctors removed some shrapnel from his wrist, but opted not to 
remove it from his spine for fear of causing permanent paralysis in his legs.  
He still has shrapnel in his back, stomach and hip that continues to be the 
source of chronic pain.

[The applicant] underwent further treatment and physical therapy at Camp 
Zama, Japan before returning to combat in February 1969, a little over a 
month after his surgery.  During the remaining 10 months of his tour, he 
regularly experienced traumatic events.  His own life was constantly at risk, 
he slept very little, and he regularly witnessed severe injuries and the deaths 
of his fellow Soldiers and Vietnamese civilians.  Several instances were 
particularly harrowing.

On one occasion, [the applicant’s] unit opened fire on what they believed to 
be an enemy combatant.  The target was actually an American Soldier who 
was wounded during the attack.  [The applicant] was very disturbed to have 
hurt one of his own.  Another time, he received the wrong coordinates for 
firing on enemy targets and instead fired on civilians, including women and 
children, unfortunately and tragically killing them.  At the time, he felt 
physically ill at the realization that he had killed innocent people.  He received 
no support or debriefing after this incident, and the guilt still weighs on his 
conscience today.  Moreover, firefights were a constant occurrence, such as 
the all-night battle that ensued after the death of Ho Chi Minh in September 
1969.  The lack of sleep, extreme exhaustion, and constant fear of being 
attacked exacerbated the trauma that he experienced.

[The applicant] completed his tour of duty in November 1969 and returned 
home to Houston, TX for several weeks before reporting to his next 
assignment at Fort Bragg, NC.  For his service in Vietnam, he earned many 
awards, including a Purple Heart, the Vietnam Service Medal with four Bronze 
Service Stars, and the Republic of Vietnam Campaign Medal.

Garrison life at Fort Bragg was very different from combat and he had a 
difficult time adjusting.  In Vietnam, he was not expected to shave, polish his 
boots, or wear a clean uniform; on base, he was expected to do all of these 
things, which did not seem important to him after witnessing the horrors of 
war.  Furthermore, he received little recognition from the Army for the ordeal 
he had endured.  Once, when he wore his service medals for full-dress 
inspection, he was chastised by a senior non-commissioned officer who did 
not believe that he had earned a Purple Heart, which left him feeling "totally 
demeaned.

[The applicant] also dreaded the possibility of returning to war.  Shortly after 
he arrived at Fort Bragg, he was told that he may have to ship out to the 
Middle East.  As a result, he spent several days rising early, putting on a 
parachute and waiting on a tarmac for a plane to take him back into combat. 
Ultimately, however, the order to deploy never came.  He felt a great sense of 
relief, but this experience was a reminder that he may have no choice but to 
return to battle.  It was at Fort Bragg that he first started experiencing 
hallucinations related to his combat experiences.  He awoke one night and 
believed he saw a hole in the ground, out of which Vietnamese Soldiers were 
crawling, poised to attack.  He grabbed an M16, loaded it and prepared to 
shoot, but the hole disappeared.  The incident frightened him and he worries 
to this day that he could have hurt someone had he fired the rifle.  Around this 
time, he began using alcohol with greater frequency, as a means of coping 
with the trauma of the war.  He was overwhelmed by the deaths of tens of 
thousands of U.S. Soldiers in Vietnam and left confused by the anti-war 
protests at home.  He did not understand why our country had gone to war 
and began to feel like all this suffering had been pointless.  Around this time, 
he repeatedly attempted to receive medical assistance for an issue with his 
eye that he attributed to a head injury he sustained in Vietnam, but the Army 
failed to provide him prompt medical care.  This left [the applicant] feeling that 
he was not being taken care of - physically or psychologically - by the Army. 
Shortly thereafter, while on leave in August 1970, he made a decision (which 
he still regrets) not to return to Fort Bragg.  Instead, he began working 
construction in Houston, so that he could take care of his wife, who had 
recently become pregnant.  Three years later, the military sent authorities to 
apprehend him in Texas and he was charged with being AWOL in violation of 
Article 86 of the Uniform Code of Military Justice (UCMJ).  Rather than face a 
court martial, and the possibility of jail time, he agreed to accept a voluntary 
discharge.  He cites the decision to go AWOL as one of the biggest mistakes 
he's ever made.  He describes the next decade as the darkest period of his 
life.  His difficulties with adjusting to civilian life worsened, impacting him both 
professionally and personally.  He had a difficult time keeping a job, which 
caused hardship for his family, including his newborn son.  Reminders of the 
war, such as from songs, movies and news stories, would cause him to 
experience deeper depression and unstable, violent moods.  He also 
frequently had panic attacks and nightmares where he would re-live combat 
experiences.  He turned to alcohol to cope with these symptoms.  His ex-wife, 
unfortunately experienced these episodes first hand.

In a letter of support, [the applicant’s ex-wife] recalled that her ex-husband 
would suddenly change and become enraged for no reason.  His moods 
sometimes escalated to physical violence and he would seem to become 
someone else, directing rage at [his ex-wife] as if [she] were an enemy.  
Afterwards, he would express regret and apologize.  Eventually, [the 
applicant] declined to a point where he believed that the people around him 
would be better off if he was dead.  He contemplated suicide and even went 
as far as putting a gun in his mouth, but did not pull the trigger because he 
was worried about his son.  Their marriage eventually failed because of [the 
applicant’s] deteriorating mental health.  Several years after his divorce, his 
life began to tum around.  He secured a steady job at the Houston Chronicle 
where he had a 25-year career, advancing from the position of pressman to 
the facility administrator of the paper's office building in downtown
Houston.  He learned to partially cope with his condition through focusing on 
his career.  He remarried in 1991, his second wife has been a source of 
stability and has helped him to find himself.  However, he still experiences 
regular nightmares, depression, and chronic pain.  These symptoms began to 
worsen again after he retired and, as a result, he sought counsel from both 
Veteran's Administration (VA) and civilian psychologists. 

[The applicant] first visited the Houston VA Medical Center in November 2016 
in connection with chronic back pain and an increasingly depressed mood.  
Dr. P__ D__ a resident psychiatrist at the VA, examined the applicant and 
interviewed him about his combat experiences, subsequently diagnosing him 
with both MDD and PTSD.  Dr. D_ prescribed [the applicant] with anti-
depressant medication, which he has been taking since that time. [The 
applicant] has also continued to regularly meet with Dr. D__ and other VA 
psychiatrists for counseling sessions.  In connection with the preparation of 
this application, [the applicant] also met with K_ E. L_, a Licensed Clinical 
Social Worker with 13 years of practice experience at the Harris Health 
System and Baylor College of Medicine.  Ms. L__ interviewed [the applicant] 
on May 17, 2018 in one interview totaling more than 6 hours.  Based on her 
clinical interview, tests, and questionnaires about his service in Vietnam, Ms. 
L_ diagnosed [the applicant] with PTSD and MDD, Recurrent, Severe with 
Psychotic Features, beginning with his combat experience in 1968.  She 
concluded that [the applicant's] symptoms of these conditions continued after 
his return from the war because he did not receive any psychiatric care.  In 
particular, she found that [the applicant's] decision to go AWOL "can be 
explained as a symptom of avoidance from the [PTSD]." Ms. L_ stated in her 
report:

Even though [the applicant] did not know that he was suffering from 
mental disorders in 1970 at Fort Bragg, his body did not allow him to 
continue participating in the military, in order to protect him from further 
harm.  His [failure] to ask for permission to leave can also be explained 
by-his fragile mental state, fear of dying, and depressive mood.  When a 
person experiences a trauma, the body and mind remember the traumatic 
event for the purpose of survival and alerting the person when they are in 
a similar situation. I submit that [the applicant’s] time [at] Fort Bragg was a 
trigger for his mental disorders and the symptoms were exacerbated.

Ms. L_ also noted that, while [the applicant] does currently score strongly 
positive on the questionnaires for PTSD and depression, his scores are lower 
than they would be but for his recent prescription for psychiatric medication 
and attendance at psychotherapy sessions.  Therefore, "the intensity and 
frequency of [PTSD] and [MDD] symptoms were at a severely high rate when 
he left Vietnam."

c.	In counsel closing arguments he states:

The ABCMR may upgrade a discharge to correct an error or an injustice.  In 
2014, the Secretary of Defense published guidance on discharge upgrade 
petitions made by Veterans with PTSD (Hagel Memo).  The Hagel Memo was 
issued as a result of media and congressional concern over the military 
board’s treatment of Vietnam Veterans with PTSD and data showing that the 
boards deny 95.47% of discharge upgrade applications made by Vietnam 
Veterans with PTSD and other Than Honorable discharges.  Recognizing that 
PTSD was not a diagnosis until well after the service of many Veterans, the 
Hagel Memo directs the Boards for Correction of Military Records to give 
"liberal consideration" to discharge upgrade applications based on PTSD and 
“liberal” and “special consideration” to PTSD diagnoses made by either 
civilian or VA providers.  The PTSD Upgrade Memo also provides medical 
guidance and explains the role of PTSD as a mitigating factor in misconduct 
leading to Other Than Honorable discharges.  This medical guidance, along 
with the liberal consideration standard, establish that the Board must give 
wide latitude to the claims of veterans whose service led them to develop 
PTSD, particularly during an era before it was a recognized medical 
diagnosis.  This guidance is explicitly “intended to ease the application 
process for veterans who are seeking redress.”  In 2017, Secretary Hagel 
issued a second memorandum (“the Clarifying Guidance”) that again requires 
liberal consideration be given to veterans petitioning for relief based in whole 
or in part on matters relating to mental-health conditions.  Evidence may 
come from sources other than a veteran's service record and may include 
records from, among other things, mental health counseling centers, 
physicians, and statements from family members, friends, roommates, 
coworkers and fellow service members.  Evidence may also include changes 
in behavior, inability of the individual to conform their behavior to the 
expectations of a military environment, substance abuse, depression, anxiety 
without an identifiable cause, unexplained social behavior changes and 
relationship issues.  Moreover, “[evidence of misconduct, including any 
misconduct underlying a veteran's discharge, may be evidence of a mental 
health condition, including PTSD.” The Clarifying Guidance requires the 
Board to make the following inquiries:

• Did the veteran have a condition or experience that may excuse or 
mitigate the discharge?
   • Did that condition exist during military service?
• Does the condition or experience actually excuse or mitigate the 
misconduct?
   • Does that condition or experience outweigh the discharge?
   
The evidence shows that [the applicant] satisfies each of these inquiries.  His 
mental health conditions significantly impacted his ability to serve and were a 
mitigating factor in the misconduct underlying his discharge.  The Clarifying 
Guidance creates a presumption in favor of an upgrade when a veteran 
presents evidence of PTSD or other mental health conditions that contributed 
to the conduct that led to the discharge.  Accordingly, the ABCMR should find 
that [the applicant] is eligible for an upgrade and characterize his service in 
Vietnam as Honorable. 

3.  Counsel submitted a declaration of the applicant in Exhibit A, dated 1 May 2018, in 
which the applicant states:

   a.  His name is G_ R. P_ and he was born on 31 August 1950 in Houston, TX, and 
currently resides in Katy, TX. 
   
   b.  He is retired from a 25-year career at the Houston Chronicle newspaper.  He 
started there as a pressman, advanced to lead pressman, and was later promoted to 
the position of facility administrator for the paper's office building, where he managed 
personnel, construction, technology, and other infrastructure.
   
   c.  He was born and raised on the property of the Acme Brick Company where his 
parents, both migrant workers, lived, worked, and raised him and his 7 brothers and 
sisters in a one-room house.  They were very poor but loved and supported one 
another.  He grew up having a lot of respect for his parents and knowing the value of 
hard work.
   
   d.  By the time he was 13 or 14 years old, he started working too.  He never 
attended high school, opting instead to work in the fields and as a dishwasher and 
waiter.  At the time, it was more important to him to help support his family than to get 
an education.  At 17, after his brother was drafted, he decided to voluntarily enlist to 
also help serve my country in Vietnam.  
   
   e.  He served in the U.S. Army as an Airborne qualified Artilleryman, from 10 May 
1968 until he was discharged as a Private on 18 April 1974, with an other than 
honorable characterization of service.

   f.  He deployed to Vietnam in November of 1968, a few months after his 18th 
birthday.  He was first shipped to Cam Ranh Bay, where he underwent one week of 
jungle training, before he was flown by helicopter to the front, where he served in 
various artillery roles, including as a gunner, assistant gunner, and loader.
   
   g.  The explosion left him in a daze, but he recalls feeling intense pain and looking 
down to see that his clothing was saturated with blood.  At that point, he was sure he 
would die.  A friend jumped over some sand bags and picked him up to carry him to 
safety but another mortar hit, and we both went back down.  He doesn’t know what 
happened to him.  He heard calls for "Doc" someone bandaged his wounds, and they 
waited for evacuation, under fire from gunships the entire time.  In total, out of 
approximately 65 Soldiers in his battery, 8 were killed that day, and 27 were wounded.  
He thinks about them all the time.
   
   h.  Eventually, a helicopter came for them.  He was flown to the nearest medical 
center and then on to the hospital at Camp Zama, Japan.  There, he was treated for a 
concussion (traumatic brain injury) and had surgery to remove shrapnel that became 
lodged in his wrist and spine after the mortar blast, which caused temporary paralysis.  
However, the doctors ultimately determined that they could not remove the shrapnel 
from his spine because they believed doing so would paralyze him for life.  He still has 
shrapnel in his wrist and back, which has been the source of chronic pain for nearly 50 
years.
   
i.	After spending one month recovering at Camp Zama, the doctors cleared him for
duty.  He was sent back to Vietnam to serve the remaining 10 months of his tour.  His 
unit was frequently under attack by rockets and sniper fire.  They had little relief from 
combat and, even though they were supposed to be pulled back to the rear once per 
month, he only received leave a handful of times during the remainder of his tour.  He 
became convinced that he would not survive to the end of my tour and woke every day 
just hoping that he wouldn't be killed that day.

	j.  During the remainder of his tour in Vietnam, his artillery battery regularly faced
active combat.  Among other things, they dealt with rocket attacks and snipers. During 
the latter half of his deployment, the US shifted its mission to primarily support the 
South Vietnamese Army.  This imposed even more hardship on his unit because they 
were without U.S. infantry support.  To that end, he routinely led patrols where he was 
the point man and undertook tremendous risk of death or injury.

	k.  One of his primary jobs in the field was to input target coordinates for their 105
millimeter howitzer, which has a maximum range of roughly 5 miles.  Once, while in the 
process directing such indirect fire on the enemy, he received an order to cease fire.  
Due to no fault of his own, he was given the wrong coordinates and inadvertently fired 
on civilians, killing a Vietnamese family with children.  This incident has weighed heavily 
on him ever since.  He saw many fellow Soldiers become numb to the violence around 
them, even laughing at the injuries inflicted on innocent civilians.  However, he cannot 
forget this incident.  He thinks it's because of the way he was raised.  His parents 
always taught him to be kind and decent, emphasizing the importance of family, and 
suddenly he had killed a family.

   l.  He earned various awards for his service, including a Purple Heart, the Vietnam
Service Medal with four Bronze Service Stars, the Republic of Vietnam Campaign 
Medal, a Parachutist Badge, and the Sharpshooter Badge for Rifle.  While deployed, he 
received an Article 15 for possession of marijuana.  Although the drugs in question were 
simply found in his shared bunker and not actually his.  He didn't understand he had 
legal rights to contest the non-judicial punishment.  As a result of the Article 15, he was 
reduced from the rank of Specialist (E-4) to Private (E-1).

   m.  After completing his tour, he returned to the US, where he was stationed at
Fort Bragg, NC with the 82nd Airborne Division.  It was there that he started to have 
personal problems.  He had trouble fitting in with his peers and felt guilty about having 
survived Vietnam.  He believed that he would have been better off had he died in 
combat, because he could not imagine ever living a normal life again.  Even during 
drills, he felt out of place.  In Vietnam, they were focused solely on survival and 
completing their mission.  But on base, he found himself being chastised for a crooked 
uniform, or un-polished boots, both things that seemed unimportant after what he had 
witnessed overseas.  To that end, he received another Article 15, while at Fort Bragg for 
speeding while on post.  At the time, nothing seemed significant or important, so he 
didn't appreciate what this really meant.  His unit also wasn't doing its part to help take 
care of him.  The one time he wore his medals for a full dress inspection, a sergeant 
ordered him to take them off, because he didn't believe he was a Purple Heart veteran.  
After everything he had been through in the previous year, he felt totally demeaned.

   n.  While at Fort Bragg, he was also experiencing problems with his eye.  A growth 
had formed and he requested medical attention.  His request went unanswered.  
Because he felt like no one cared about him, he decided to go AWOL.  He realizes now 
that he was experiencing far greater problems than just a growth on his eye.  Asking for 
that medical care was his way of seeking help because he couldn't express it otherwise.  
After leaving Fort Bragg, he returned home to TX, where he sought work so he could 
take care of his wife, who had recently become pregnant.  He didn't attempt to hide.  He 
always filed income taxes and otherwise kept the government apprised of his location.
   
   o.  Several years later, the Army sent authorities to apprehend him in TX.  He 
offered to serve out his enlistment contract, but was told that it would be too difficult to 
re-train him.  He was presented with the option to either request a voluntary discharge 
or face a court-martial.  He was afraid of jail time, because by this time he had a wife 
and young child to consider.  He signed the paperwork that was presented to him.  
Going AWOL was one of the biggest mistakes he has ever made.
   
   p.  The following decade was the darkest period of his life.  He often had trouble 
finding and maintaining employment, which caused his family hardship.  It was also 
during this time that he started having regular nightmares and panic attacks, where he 
would re-live moments from combat.  Furthermore, he would become depressed at any 
reminder of the war such as from songs, movies, and news reports.  His first marriage 
failed as a result of his unstable and often violent emotional state.  Once, during a fight 
with his wife, he fired a shotgun through a door.  She was thankfully unharmed, but 
could have been killed, another casualty of the war.  Because of incidents like this, the 
feeling that everyone would be better off if he was dead - that he first felt at Fort Bragg - 
only intensified with time.   He even seriously considered suicide in 1978.  He placed a 
loaded gun in his mouth but didn't pull the trigger only because he thought of his son.
   
   q.  He experiences nightmares, depression, and chronic pain to this day.  With time, 
he learned to cope somewhat, mainly by focusing on work.  He was hired by the 
Houston Chronicle in 1990, and had a career there that he truly enjoyed.  He married, 
his second wife in 1991 and she's done so much to help him find himself as well.  But 
after he retired a few years ago, the memories started flooding back.  As a result, he 
sought psychological evaluation and treatment at the Houston VA Medical Center.  His 
doctor at the VA diagnosed him, with MDD and PTSD.  He now sees a therapist 
regularly and takes medication for depression.  The treatment has lessened his 
symptoms, but his psychologist has advised him that he will never be completely normal 
again.

   r.  With the assistance of counsel, he has prepared an application to the Board for 
Correction of Military Records requesting the characterization of his discharge be 
upgraded to General Under Honorable Conditions because (1) PTSD was a mitigating 
factor that led to him going AWOL and (2) his post-discharge conduct weighs in favor of 
a discharge upgrade under the Board's clemency power.

4.  The applicant enlisted in the Regular Army on 10 May 1968.  After completing initial 
entry training, he was assigned overseas in Vietnam on 26 November 1968.

5.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the UCMJ, on the following occasions:

*	8 August 1969, for wrongfully possessing one ounce, more or less, of marijuana, 
on or about 6 August 1969, in the Republic of Vietnam
*	10 April 1970, for wrongfully speeding, on or about 20 March 1970 at Fort Bragg, 
NC

6.  The applicant’s service records show, he went AWOL from Fort Bragg, NC from on 
or about 1 August 1970, into a desertion status, until he was apprehended in Houston, 
TX on 29 March 1974 and returned to military control at Fort Hood, TX.

7.  Court-martial charges were preferred against the applicant on 3 April 1974 for 
violations of the UCMJ.  The DD Form 458 (Charge Sheet), shows he was charged with 
one specification of being AWOL from on or about 1 August 1970 and remaining absent 
until on or about 29 March 1974.

8.  The applicant’s service records contain the following documents, dated 5 April 1974:

   a.	DA Form 2496 (Disposition Form) – Subject: Medical Statement, noting “a 
complete review of physical and mental examinations have failed to reveal any defects 
which would have contributed to the misconduct of [the applicant].  According to Army 
Regulation, he is physically and mentally fit for duty without profile limitations.  He was 
and is responsible for his acts, able to understand and participate in board proceedings.

   b.	Fort Hood (FH) Form 1414 (Mental Status Evaluation), showing; the applicant 
had normal behavior; was fully alert and oriented; was thinking clearly with normal 
thought content; had good memory; had no significant mental illness; was mentally 
responsible; able to distinguish from right and wrong; able to adhere to right and wrong; 
had the mental capacity to understand and participate in board proceedings; and met 
retention standards.

   c.	A Standard Form 88 (Report of Medical Examination), which shows he was 
evaluated and qualified for an administrative separation.

   d.	A Standard Form 93 (Report of Medical History), which shows that while being 
screened for an administrative discharge, he noted he was in fair health and the injuries 
he received while in Vietnam.
9.  The applicant consulted with legal counsel on 9 April 1974 and was advised of the 
basis for the contemplated trial by court-martial, the maximum permissible punishment 
authorized under the UCMJ, the possible effects of a less than honorable discharge, 
and the procedures and rights that were available to him.

	a.  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 charges 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.

	b.  He was advised he could submit any statements he desired in his own behalf.  
The applicant stated, in pertinent part:

		(1)  He enlisted in the Army on 10 May 1968, for a term of three years.  He 
completed basic combat training at Fort Bliss, TX, and his advanced individual training 
at Fort Sill, OK.  He served in Vietnam from 	November 1968 to November 1969 with the 
173rd Airborne.  He is authorized to wear the National Defense Service Medal, 
Overseas Bars, Vietnam Campaign Medal, Vietnam Service Medal and Purple Heart.

      (2)  He sought medical treatment for a growth on his eye which was causing him 
cloudy vision.  He became upset when he did not receive prompt treatment.  He 
believes his eye problem was caused by the concussion he received in Vietnam from an 
enemy mortar shell.  From the same mortar shell, his hand was cut up and he has lost 
most of the feeling in two fingers on his left hand.  He also has a shell fragment in his 
back around the fourth vertebrae which sometimes causes him pain.  Considering his 
lack of education, his Vietnam service, and his record, which shows only one Article 15, 
it is requested that he receive an appropriate discharge.

10.  The applicant’s chain of command recommended approval of his discharge request 
on 10 April 1974, under the provisions of Army Regulation 635-200, Chapter 10, and 
recommended he receive an Undesirable Discharge Certificate.

11.  The Staff Judge Advocate reviewed the applicant’s request on 11 April 1974 and 
recommended approval, under the provisions of Army Regulation 635-200, Chapter 10, 
with the issuance of an UOTHC discharge.

12.  The separation authority approved the applicant's request for discharge on 
12 April 1974, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of 
trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade 
and the issuance of an Undesirable Discharge Certificate.

13.  The applicant was discharged on 18 April 1974, under the provisions of Army 
Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214, he 
was issued confirms his service was characterized as UOTHC.  He was credited with 
completing 2 years, 3 months, and 13 days of total active service, with 1year of Foreign 
Service.  His DD Form 214, further shows: 

14.  The applicant provides:

*	Brief for Petitioner (Attorney’s Statement and Exhibits enclosed) 
*	Attorney for the Applicant Statement (summarized above)
*	Exhibit A, Applicant’s Declaration (summarized above)
*	Exhibit B, Applicant’s Mental Health Evaluation, conducted on 17 May 2018
*	Exhibit C, Applicant’s DD Form 214, ending period 18 April 1974
*	Exhibit D, Declarations of V_ P_ and C_ V_, showing 

	He was verbally, emotionally, and sometimes physically abusive.  Was 
frequently awakened by nightmares, and exhibited symptoms of shell shock.  
Was resentful and angry, that he was sent back having barely recovered from 
his wounds.  Was torn emotionally over his experience in war, and the 
difficulties he continued to endure at home.  He always worked hard.  Would 
drink and get drunk often, and had become a functioning alcoholic, to deal 
with his inner demons.  He would never admit he had a problem and get 
angry to discuss it.  He would suddenly change and become enraged for no 
reason.  His eyes seemed to glaze over, after a few minutes, he would come 
back to his senses.  This even happened when he'd had no alcohol.  He 
would grab or punch his ex-wife, and seem to become someone else, 
directing rage at her as if she were an enemy.  The next day, he would be 
nice and either apologize or act like nothing happened.  

	When he arrived from war he was not the same person that had left, he was 
very withdrawn, quiet, and seem to have a lot of things going on in his head.  
It seemed hard for him to forget what happened in Vietnam and he carried it 
around with him.  His life seem to never be the same after that experience. 
He had problems with a lot of things & situations such as anger, violence & 
withdrawal.  He married and divorced because he had issues that ended the 
marriage.  I witnessed him breaking down the door, getting very angry toward 
his first wife during his marriage and hitting her.  He seem to get very 
depressed and would go to drink heavily, as to relax and forget what 
happened.  He should have had help to be able to deal, and cope with 
whatever he saw and went thru in Vietnam.

*	Exhibit E, Hagel Memorandum, dated 3 September 2014 
*	Exhibit F, Applicant’s VA Medical Records 
*	Exhibit G, Clarifying Guidance, dated 25 August 2017 
*	Exhibit H, Applicant’s Military Service Record
*	Exhibit I, Army Regulation 135-178, 7 November 2017
*	Exhibit J, Yale Law Journal Newsletter Article, In Need of Correction: How the 
Army Board for Correction of Military Records Is Failing Veterans with PTSD, 
March 2104

15.  In the processing of this case, the Army Review Boards Agency (ARBA) Senior 
Medical Advisor/Psychologist reviewed this case and rendered an advisory opinion on 
3 June 2019.  The ARBA senior medical advisor opined:

   a.  A review of the applicant’s electronic medical record Joint Legacy Viewer (JLV), 
the hardcopy military medical record , and the hardcopy military records.  The electronic 
military medical record was not reviewed as it was not in use during the applicant's time 
in service.

      (1)  The applicant’s VA Medical record indicated, he was diagnosed with PTSD 
and MDD on 15 November 2016.  He is currently being treated at the VA for his 
behavioral health disorders.

      (2)  Review of the hard copy military medical records indicated [the applicant] 
received a medical/medical evaluation, on 5 April 1974 by a Physician's Assistant prior 
to his discharge.  The provider noted [the applicant] met retention standards at the time 
of his discharge.  His physical injuries due to the mortar attack in Vietnam, on 
30 December 1968 are documented in his medical record.  He was evacuated to Camp 
Zama, Japan due to injuries on 3 January 1969 and returned to Vietnam following 
medical treatment.  He was not seen by a behavioral health provider.  In addition, it 
should be noted that PTSD was not a recognized diagnosis until 1980, well after [the 
applicant’s] military service.

		(3)  Review of hard-copy medical records indicated Mr. Perez was diagnosed 
with PTSD and MDD by a psychiatrist at the VA on 15 November 2016 at the Houston, 
TX, VAMC.	

		(4) There is no indication in the applicant's military records that the applicant 
failed to meet military retention standards in accordance with Army Regulation 40-501.

   b.  Review of the military and applicant-provided documentation, indicates there is 
evidence that undiagnosed PTSD likely mitigated the applicant’s misconduct.  Although 
his military medical records are void of information regarding behavioral health 
symptoms, the applicant asserts experiencing stress and PTSD-like symptoms 
stemming from his experiences in Vietnam and adjustment difficulties upon returning 
home.  PTSD symptoms can be associated with avoidant behaviors, such as being 
AWOL and his symptoms appear to have negatively impacted his mood, adherence to 
rules, and willingness to serve.

   c.  In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance 
Memorandum, the applicant’s VA diagnosis of PTSD provides sufficient evidence to 
support applicant’s contention that he developed combat-related PTSD while on active 
duty.  The applicant’s military records indicate that the applicant did meet military 
medical retention standards.  The applicant’s diagnosis of PTSD is a mitigating factor in 
the misconduct that resulted in the applicant’s discharge from the military.

16.  The advisory opinion was forwarded to the applicant on 6 June 2019, for his review 
and to provide him the opportunity to comment and/or rebut the findings.  He did not 
respond

17.  The Board should consider the applicant’s petition and overall service record in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, an advisory opinion and published DoD guidance for 
consideration of discharge upgrade requests.  The Board considered the applicant’s 
statement including his reason for going AWOL with supporting statements, counsel’s 
submission, the applicant’s record of service to include service in Vietnam, his Purple 
Heart, the nature of his misconduct and the reason for his separation.  The Board 
considered his current diagnosis and the conclusions of the advising official that 
evidence supports PTSD at the time of his service and that condition supports mitigation 
of the misconduct.  The Board found the applicant provided a statement regarding post-
service achievements, but found no additional evidence provided by the applicant.  
Based on a preponderance of evidence, the Board found that liberal consideration 
applies to this case and determined that the applicant’s character of service should be 
upgraded.

2.  After reviewing the application and all supporting documents, the Board found that 
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.  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 
his DD Form 214 for the period of service ending 18 April 1974 to show in item 9a. 
(Character of Service) – “General, under honorable conditions”.

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 correcting his character of service to reflect “Honorable”.





				  
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.  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 ABCMR may, in its discretion, hold a hearing or request additional evidence or 
opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to 
a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

2.  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.  

	c.  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.

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.  The Office of the Undersecretary of Defense for Personnel and Readiness issued 
clarifying guidance, on 25 August 2017, 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 were 
instructed 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.

5.  The Office of 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.

ABCMR Record of Proceedings (cont)	 AR20180016255

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