IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20180016440 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Self-written statement * Veterans Administration (VA) documents related to Post-Traumatic Stress Disorder (PTSD) * Personnel and medical documents from his military records 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 AR20070013405 on 31 January 2008. 2. The applicant states his discharge should be reconsidered for an upgrade based on a Department of Defense regulation change in regards to post-traumatic stress disorder (PTSD) in December 2016. As a Vietnam veteran who has been diagnosed with PTSD, it is without question that the stressors of war were impactful to his decision-making processes that ultimately resulted in his discharge; under other than honorable conditions. Following his military service, he was successful in opening his own business; "A Vitamin Store" in Denver, CO. He owned and operated the business until September 2005, upon which time he returned to Illinois to take care of his aging mother until her passing. In 2013, he moved to Montana where he now resides and is retired. 3. On 5 March 1969, the applicant enlisted in the Regular Army for 3 years. He completed training requirements and was awarded military occupational specialty 12A10 (Pioneer). 4. On 6 September 1969, he was assigned for duty as a pioneer with the 237th Engineer Battalion, in Germany. 5. On 29 September 1969, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice, for failure to obey a lawful order issued by his commanding officer regarding female visitors to the barracks. The punishment included reduction to private, pay grade E-2 (suspended), 14 days restriction, and extra duty. The applicant did not appeal the punishment. 6. On 26 January 1970, the applicant accepted NJP for leaving his guard post before being properly relieved. The punishment included 14 days extra duty and restriction, and detention of $59.00 pay until 26 January 1971. The applicant did not appeal the punishment. 7. On or about 4 October 1970, the applicant was assigned for duty as a pioneer with the 326th Engineer Battalion, in the Republic of Vietnam. 8. On 28 April 1971, the applicant accepted NJP for being absent from his place of duty for 25 minutes on 19 April and for a similar absence of 15 minutes on 26 April. The punishment included a reduction to private, pay grade E-2; forfeiture of $47.00 pay per month for 1 month; and 7 days extra duty. The applicant did not appeal the punishment. 9. On 12 June 1971, the applicant accepted NJP for failing to report for morning and afternoon work formations. The punishment included a reduction to private, pay grade E-1; and a forfeiture of $40.00 pay (all punishment was suspended until 16 August 1971). The applicant did not appeal the punishment. On 5 July 1971, the punishment was vacated. 10. On 6 August 1971, the applicant accepted NJP for wrongful possession of 50 marijuana cigarettes. The punishment included a forfeiture of $100.00 pay per month for 2 months and 20 days extra duty. The applicant did not appeal the punishment. 11. There are no other available records showing any additional NJP. All NJP described above appear to have been accepted by the applicant and to bear his signature. There is no evidence, nor did the applicant provide evidence showing that his records were altered. 12. The discharge packet is missing from his military records; however, the applicant’s DD Form 214 shows that he was administratively discharged on 17 November 1971, under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. His service was characterized as under other than honorable conditions. He had completed 2 years, 8 months, and 3 days of creditable active duty service. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Expert Marksmanship Badge with M-14 Rifle Bar. 13. On 19 December 1973, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. 14. On 22 October 2019, the Army Review Boards Agency Psychologist reviewed this case and provided a medical advisory opinion. The medical advisory opinion was provided to the Board and the medical advisor stated, in pertinent part: a. A review of the electronic Veterans Administration (VA) medical record indicated the applicant was registered with the VA but has no records. He did not have a service connected disability rating. b. The applicant's packet contains a VA PTSD Disabilities Questionnaire (self-report questionnaire) but does not contain any documentation or medical records indicating any behavioral health diagnoses. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, there was no documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses in accordance with Army Regulation 40-501 (Standards of Medical Fitness). There is no behavioral health diagnosis to mitigate his pattern of misconduct some of which predates his time in Vietnam. 15. The applicant was provided a copy of the medical advisory opinion. He did not respond. 16. Army Regulation 635-212 set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 17. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 18. In reaching its determination, the Board can consider the applicant’s petition and 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, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement to include his claim of PTSD, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the absence of a separation packet, the reason for his separation and whether to apply liberal consideration or clemency to his request. The Board considered the review by the medical official, the absence of a diagnosis (PTSD) and the conclusion of the advisory regarding the absence of a mitigating condition for the misconduct. The Board concurred with the advising official’s assessment and found that 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 :XXX :XXX :XX 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. Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 2. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. This regulation provided that: a. An honorable discharge was a separation with honor. 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 be inappropriate. b. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge 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 (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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 Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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, 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. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016440 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016440 6 ABCMR Record of Proceedings (cont) AR20180016440 5