IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20180016523 APPLICANT REQUESTS: The applicant requests upgrade of his general discharge under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board (ADRB)) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Disabled American Veterans Contact Brief FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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. The applicant states he was young and dumb, and did not realize the importance of his actions. He has now corrected his life; he has worked as a cook at a Department of Veterans Affairs medical facility for more than 20 years. 3. The applicant's service records show: a. He enlisted into the Regular Army for a 4-year term, on 3 June 1970, at 19 years of age. Following initial training, he was awarded military occupational specialty 72B (Communications Center Specialist); orders assigned him to Thailand and he arrived on 10 December 1970. His leadership promoted him to specialist four (SP4)/E-4 on 29 May 1971. While in Thailand, his conduct and efficiency ratings were "Excellent." b. He departed Thailand on 9 December 1971; orders reassigned him to Korea and he arrived on 13 January 1972. On 16 February 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 12 until 14 February 1972; punishment included reduction in rank from SP4/E-4 to private first class (PFC)/E-3. c. On 5 October 1972, after refusing to accept NJP, a summary court-martial convicted the applicant of failing to obey the order of a noncommissioned officer (NCO) to remain at his place of duty, and for willfully disobeying a superior commissioned officer's order to fill out a list of expendable supplies. The court sentenced him to forfeiture of one third of one month's pay; 8 days of hard labor; reduction in rank to private (PV1)/E-1 (suspended for 90 days); and immediate reduction to private (PV2)/E-2. On 5 October 1972, the summary court-martial convening authority approved only so much of the sentence as provided for forfeiture of $98.00, 8 days extra duty, and reduction to PV2/E-2. d. On 14 November 1972, the applicant accepted NJP for failing to obey a superior commissioned officer's order to report to work, and failing to go to his appointed place of duty at the time prescribed. e. On 18 December 1972, his commander in Korea initiated a bar to reenlistment against the applicant. He cited the applicant's summary court-martial conviction, two NJPs, being counseled on two occasions, pending investigation/court-martial charges, and disenrollment from Project Transition (a program designed to help Soldier learn skills for civilian employment). The applicant elected not to make a statement; his higher headquarters approved the bar to reenlistment. f. In or around 22 December 1972, the applicant's commander informed him of his intent to separate the applicant under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability); (a copy of this notification is not available in the record). On 22 December 1972, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action; he requested a board of officers consider his case, and indicated he wished to personally appear before the board with counsel. g. On 26 December 1972, the Chief, Mental Health Services conducted a psychiatric evaluation; he diagnosed the applicant with an immature-type character disorder that met medical retention standards. He noted the applicant was not likely to benefit from further rehabilitative efforts and was cleared for any administrative action his commander deemed appropriate. h. On 5 January 1973, a summary court-martial convicted the applicant of UCMJ violations. (1) The court convicted him of two specifications of failing to go to his appointed place of duty at the time prescribed; one specification of assaulting a military policeman; and using provoking words towards that military policemen. (2) The court sentenced him to 30 days restriction and extra duty, forfeiture of $100 per month for 1 month, and reduction from PV2 to private/E-1. On 5 January 1973, the summary court-martial convening authority approved the sentence and ordered its execution. i. On 15 January 1973, the applicant's commander forwarded his separation recommendation for unfitness under the provisions of paragraph 6a (1) (Frequent Incidents of a Discreditable Nature with Civil or Military Authorities), AR 635-212. He requested the separation authority convene a board of officers to hear the applicant's case. (1) The commander stated his reasons for initiating this action were the applicant's: frequent incidents of a discreditable nature with military authorities, established pattern of shirking, and established pattern of showing dishonorable failure to pay debts. (2) The commander noted, during the period 14 January to 15 December 1972, the applicant was placed in various duty assignments; his duty performance was unsatisfactory in each instance. He also mentioned the applicant's two summary court- martial convictions and one NJP. j. On 28 February 1973, the applicant accepted NJP for being AWOL from 26 until 27 February 1973. k. On 22 March 1973, the separation authority advised the applicant in writing that, based on lengthy discussions with the applicant's attorney, he had decided it was in the best interest of both the applicant and the Army to separate him for unsuitability (i.e. chapter 13 (Separation for Unfitness or Unsuitability)) under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel); he offered the applicant a general discharge under honorable conditions. On 22 March 1973, after consulting with counsel, the applicant elected to waive his rights and opted not to submit a statement in his own behalf. The separation authority approved the applicant's general discharge under honorable conditions and ordered its execution; on 30 March 1973, he was discharged accordingly. l. The applicant's DD Form 214 shows he completed 2 years, 9 months, and 26 days of his enlistment contract. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Armed Forces Expeditionary Medal, and a marksmanship qualification badge. m. On 23 May 1974, the applicant petitioned the ADRB, requesting the upgrade of his character of service to honorable. He asserted he was not sufficiently represented by counsel, and alleged some of his disciplinary actions were the result of discrimination; he claimed his unit commander was biased and had said he was out to get the applicant with anything that could be used against him. On 27 November 1974, the ADRB denied his request, finding his discharge had been proper. 4. During part of the applicant's era of service, commanders used AR 635-212 to separate Soldiers for unfitness and unsuitability; the regulation specifically applied to those who were involved in frequent incidents of a discreditable nature with military authority, as well as those who had a character or behavior disorder (currently termed personality disorder). AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212, in November 1972, and moved the unfitness and unsuitability separations to chapter 13; character/behavior disorders were listed under unsuitability. a. AR 635-200 was further revised on 1 December 1976, based on a civil suit settlement. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder had to include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. Later guidance mandated retroactive application of revised policies, attitudes, and changes in reviewing applications for discharge upgrades based on personality disorders. In addition, the policy was expanded such that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable. This rule was to be applied in all cases, except where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given (i.e. conviction by a general court-martial or by more than one special court-martial). 5. The applicant states he was immature and did not realize the significance of his actions; he has since corrected his life and been employed by the VA for more than 20 years. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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: In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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 otherwise 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 (Military Awards) states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) * Consolidation I (1 July 1971 to 30 November 1971) * Consolidation II (1 December 1971 to 29 March 1972) 3. As a result, amend his DD Form 214, ending 30 March 1973, by deleting the Vietnam Campaign Medal and replacing it with the Vietnam Campaign Medal with three bronze service stars. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 3. Special Regulation 40-1025-2, in effect at the time, defined character and behavior disorders as those indicative of developmental defects or pathological trends in the personality structure, with minimal subjective anxiety, and little or no sense of distress. It stated further that, in most instances, the disorder was manifested by a lifelong pattern of action or behavior ("acting out") rather than by mental or emotional symptoms. The associated categories were: * pathological personality types – maladjustment of individuals as evidenced by lifelong abnormal behavior patterns * immaturity reactions – physically adult individuals who are unable to maintain their emotional equilibrium and independence when under minor or major stress * alcoholism – character disturbance due to alcohol abuse * addiction – includes cases where the use of drugs represent much deeper character disturbances where individuals engage in antisocial behavior, stealing, or sexual assault while under the influence of drugs * primary childhood behavior reactions – serious emotional difficulties within the child that are not due to organic defects where emotional displays are carried to an extreme degree 4. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972. It was revised on 1 December 1976 following settlement of a civil suit. a. The revision required the type of discharge and the character of service to be determined solely by the individual's military records during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. b. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977, and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. c. A second memorandum, dated 8 February 1978, and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in paragraph 3-7a, 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. 6. 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. 7. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part 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. 8. 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. 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. ABCMR Record of Proceedings (cont) AR20180016523 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016523 6 ABCMR Record of Proceedings (cont) AR20180016523 5