ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20180016378 APPLICANT REQUESTS: through counsel, an honorable discharge or, in the alternative, affirmation of his General, under honorable conditions discharge previously received through the Department of Defense Special Discharge Review Program (SDRP). COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 23-page brief with 40 exhibits 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 (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. In a 23 page brief, counsel states, in part: a. The applicant is a decorated combat veteran of the Vietnam War who has suffered for over forty years from post-traumatic stress disorder (PTSD) that began during his deployment to Vietnam. Under current military procedures, the applicant would have received a medical discharge based on his PTSD. The applicant was instead given an Other than Honorable discharge in 1973, when PTSD was not yet a recognized medical diagnosis. Since then, the Secretary of Defense has mandated the boards for correction of military records give liberal consideration to applicants with PTSD. Under this new standard, which recognizes the injustice of less than honorable discharges to veterans like the applicant whose character of service was adversely affected by PTSD, ABCMR should revise the applicant's discharge status to Honorable or affirm the GD he received through the SDRP. b. Counsel outlines the applicant's personal and military background. He states the applicant's problems began when he experienced very traumatic events early in his deployment to Vietnam. The applicant's base in Bien Hoa was bombarded constantly day and night with rocket fire as enemy soldiers attempted to hit airplanes on the runway and helicopters on the helicopter pad, which were close to the barracks. This relentless rocket fire was "deafening" and left the applicant feeling "constantly on edge." 3. Counsel submits a personal statement from the applicant stating in part: a. He is unable to work due to PTSD, depression, and physical disabilities. He has diabetes, diabetic nephropathy, anemia, left shoulder pain, hypertension, hyperlipidemia, gastroesophageal reflux disease, headaches, abnormal vision, obesity, peptic ulcer disease, ischemic cardiomyopathy, left ventricular hypertrophy, coronary artery disease, sick sinus syndrome (warranting a pacemaker), and chronic kidney disease. He enlisted in the United States Army after his second year of college because he wanted to serve his country. Prior to enlisting he did not have a criminal record, was not subject to any lawsuits, and did not abuse drugs or alcohol. He was in prime mental and physical health. b. He was deployed to Vietnam on 19 July 1971. He was stationed in Bien Hoa and Lai Khe. Their base in Bien Hoa was the target of near constant rocket fire due to attempts to destroy airplanes on the runway and helicopters on the helicopter pad, which were both located near the barracks. The noise was deafening and he still remembers the frenzy when they needed to run for cover. He felt constantly on edge due to the blasts. When he was in the military compound at Lai Khe, a sniper fired on them and shot a Soldier in the chest who was just 3 feet away from him. He started having nightmares and flashbacks about the Soldier's death that continue to this day. He also started having negative thoughts and wanted to avoid anything that reminded him of that day in Lai Khe. One month after this incident, he learned his wife was having pre-natal complications. He went home for two weeks of leave. He was glad to come home. but felt numb. He felt detached from friends and family due to his experience in Vietnam. When it came time to report back for duty, he just couldn't do it. Having just seen a man shot and instantly die in front of him, he became convinced his wife and baby could die. He went absent without leave (AWOL) because he had to stay to protect them and he wanted to avoid things that reminded him of the shooting. c. Being AWOL was hanging over his head, so he decided to turn himself in at Fort Jackson. When he arrived at the Military Police station, he explained his situation and they suggested he go to the personnel department. Once there, he requested a compassionate reassignment but was immediately turned down, even though the white Soldier in the waiting room with him was granted one for similar circumstances. Although he was supposed to be detained, he was released, and decided to go back to his daughter, who was still experiencing asthma attacks. After a few months he decided to turn himself in again to resolve his AWOL status even though he knew there would be consequences. He received non-judicial punishment for being AWOL. d. He stayed in Fort Jackson for a few months and started to prepare to redeploy to Vietnam. The thought of going back to Vietnam filled him with dread but he tried his best to avoid thinking about what awaited him. The day before he was supposed to deploy, he called home and found out his wife had to go to the hospital for complications due to a blood disorder related to lupus. He was already so anxious about returning to Vietnam and getting shot so he went AWOL again. He was AWOL for a few months when he decided to return back to Fort Jackson to resolve his situation. When he turned himself in, they scared him about the consequences so he decided to just take the undesirable discharge. He was discharged as a private first class on 8 March 1973 with an Other than Honorable characterization of service. e. In 1977, he received a clemency discharge upgrade, however, on 3 November 1978, his clemency discharge was essentially revoked when his original discharge was affirmed. He felt the same fear, resentment, and shame as when he got his original discharge. He could not understand how draft dodgers were achieving so much success when he had actually served in Vietnam and was having such a hard time. Nevertheless, he tried to stay as positive as possible for the sake of his five children and three grandchildren. He is close to his children, and maintain good friendships with fellow Vietnam War Veterans. The applicant's complete statement is available for the Board's review and consideration. f. The applicant also stated on his application he is a decorated veteran of the Vietnam War who has suffered for over forty years from PTSD. Under current military procedures he would have received a medical discharge for PTSD; however, he was given an under other than honorable conditions discharge in 1973, when PTSD was not yet a recognized medical diagnosis. Since then, the Secretary of Defense has mandated boards for correction of military records give liberal consideration to applicants with PTSD. Under the new standard, which recognizes the injustice of less than honorable discharges to veterans like himself whose character of service was adversely affected by PTSD, the ABCMR should revise his discharge status to Honorable or affirm the General, Under Honorable Conditions discharge he received through the DoD Special Discharge Review Program. 4. Special Court-Martial Order 95, issued by Headquarters Command, dated 5 July 1972, shows the applicant was court-martial for being absent without leave (AWOL) from on or about 19 January 1972 to on or about 14 February 1972. His punishment consisted of reduction to private first class (PFC)/E-3 and forfeiture of $125.00 per month for four months. 5. On 21 February 1973, the applicant was charged with being AWOL from on or about 4 September 1972 to on or about 21 February 1973. 6. On 26 February 1973, after consulting with counsel, he requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged: * he had not been subject to coercion with respect to this request * he was advised he may be furnished an UOTHC Discharge and be furnished an Undesirable Discharge Certificate * being advised he could submit statements in his own behalf; he indicated he would submit a statement; however, this statement is not available * he would be deprived of many or all Army benefits * he may be ineligible for many or all veteran's benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State laws 7. On 6 March 1973, the appropriate authority approved the applicant's voluntary request for discharge and directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the grade of private/E-1. 8. On 8 March 1973, the applicant was discharged in the grade of private/E-1 under the provisions of chapter 10 of Army Regulation 635-200. His service was characterized as UOTHC. He completed 2 years, 5 months and 11 days of net service the period. He was awarded or authorized the following: * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 9. 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). 10. On 11 August 1977, the applicant was informed his application for consideration under the SDRP had been examined and his discharge Under Conditions Other than Honorable had been upgraded to a GD. He was issued a new DD Form 214 showing the change of his character of service and showing his rank/grade as PFC/E-3 with a date of rank of 5 July 1972. 11. On 3 November 1978, the applicant was informed the Army Discharge Review Board (ADRB) could not affirm his SDRP upgraded discharge. 12. On 22 November 1978, the applicant was informed the previous upgrading of his discharge had been re-reviewed by ADRB and it was determined the applicant did not qualify for upgrading under the new standards for discharge review. 13. On 21 October 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, the applicant has multiple significant health issues resulting in frequent admissions. Interruptions in his behavioral health care are correlated with acute medical events versus noncompliance. Based on a thorough review of available records, the applicant’s post-service diagnosis of PTSD, based on Vietnam events, does mitigate the basis for separation, AWOL. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. On 25 October 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. 15. On 4 November 2019, in response to the advisory opinion, counsel states, in part, the applicant agreed with the conclusion drawn from the advisory opinion and the opinion also aligns with the conclusions made by the applicant's civilian mental healthcare provider and VA mental healthcare providers. Counsel's complete comments are provided for the Board's review and consideration. 16. 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. 17. 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: 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 to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim, the review and conclusions of the medical advising official based on available medical records, and the applicant's response to the advisory opinion. The Board found sufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by PTSD. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon upgrade under the SDRP should be affirmed. 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 to show the under honorable conditions (general) character of service he received under the Special Discharge Review Program was affirmed. 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 any relief in excess of that described above. 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. 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 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. 3. 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. 4. Public Law 95-126 was enacted in October 1978. This legislation: a. Denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. b. Required the Service Departments to establish historically-consistent uniform standards for discharge reviews. c. Required the Service Departments to reconsider all discharges previously upgraded under the DoD SDRP using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically- consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 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 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. 7. 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) AR20180016378 7 1