ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180016572 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to general, under honorable conditions, or show he was discharged for medical reasons. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) (x2) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 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. 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 AC88-05915 on 4 January 1989. 3. The applicant states when he returned from Vietnam, he was suffering from a bad morphine addiction. In 1972, he was treated at the Department of Veterans Affairs (VA), Jacksonville, MS. This did not help him. In 2005, he was treated at another drug rehabilitation facility and the resident psychologist diagnosed him with post-traumatic stress disorder (PTSD). He has also been diagnosed with stage three lung cancer and non-Hodgkin’s lymphoma. He believes these illnesses are a result of Agent Orange, because they sprayed this chemical around the village they were assigned to protect. He is unable to get treatment at the VA, due to his characterization of service. 4. On 24 August 1967, at age 17 years with an 11th grade education, the applicant enlisted in the Regular Army with parental consent. He completed training and at the age of 18 was assigned to the Republic of Vietnam as a Special Purpose Equipment Repairer Specialist from 26 April 1968 to 25 April 1969. His enlisted qualification record shows he received conduct and efficiency ratings of excellent from the time of enlistment throughout his tour in Vietnam. 5. He accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) on: a. 19 February 1968 for stealing a camera, radio, and wrist watch of a combined value of approximately $100, the property of a private; his punishment consisted of reduction to pay grade E-1, a forfeiture of pay, extra duty, and reduction. b. 13 October 1968, for disobeying a lawful order to paint the bumper markings on his vehicle and for violating the Battalion Standard Operating Procedure when he attempted to leave camp with an improper off post-dispatch for his vehicle; his punishment consisted of restriction to the company area. c. 25 October 1968, for violating a U.S. Army Vietnam Regulation when he sold a privately owned weapon (.38 caliber pistol); his punishment consisted of reduction to pay grade E-2, a forfeiture of pay, extra duty, and reduction. 6. He was assigned to Fort Campbell, KY, on 5 August 1969. 7. Special Court-Martial Order 864 shows, on 29 August 1969, the applicant was convicted of being absent without leave (AWOL) from 21 July to 5 August 1969 and for escaping from correctional custody on 21 July 1969. He was sentenced to a forfeiture of pay. 8. Special Court-Martial Order 407 shows on 4 June 1970, the applicant was convicted of being AWOL from 12 September to 26 October 1969 and from 5 to 27 November 1969. He was sentenced to confinement at hard labor for 2 months (suspended for 6 months), a forfeiture of pay, and reduction to pay grade E-1. 9. The applicant left his unit in an AWOL status from 6 June to 6 July 1970 until he was returned to the Personnel Control Facility, Fort Campbell, KY. On 12 August 1970, court-martial charges were preferred against him for this period of AWOL. 10. On 12 August 1970, the applicant consulted with legal counsel 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 discharge under other than honorable conditions, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He elected not to provide a statement in his own behalf. 11. The applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 12. On 21 August 1970, the separation authority approved the applicant's discharge under the provisions of chapter 10, AR 635-200, for the good of the service with an Undesirable Discharge Certificate. Accordingly, the applicant was discharged on 1 September 1970. 13. His DD Form 214 shows he completed 2 years, 1 month, and 1 day of total active service with 338 days of lost time. 14. The applicant contends when he returned from Vietnam, he was suffering from a bad morphine addiction and he was treated at the VA in 1972. This did not help him; therefore, in 2005, he was treated at another drug rehabilitation facility and the resident psychologist diagnosed him with PTSD. He has also been diagnosed with stage three lung cancer and non-Hodgkin’s lymphoma. He believes these illnesses are a result of Agent Orange, because they sprayed this chemical around the village they were assigned to protect. He is unable to get treatment at the VA, due to his characterization of service. 15. Chapter 10 of AR 635-200 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 16. On 14 August 2019, the Army Review Boards Agency (ARBA) Clinical Psychologist was asked to determine if the available records reasonably support a behavioral health condition existed at the time of the applicant’s service and, if so, mitigated the misconduct that resulted in the discharge. The advisory was provided to the Board and states, in pertinent part: a. Based on a thorough review of available records, the applicant had preexisting anxiety that was acknowledged, evaluated, and treated as a subclinical issue; he was fit for duty, was not experiencing a mental illness, and symptoms did not contribute to his misconduct. Moreover, the applicant reported going AWOL to assist with family matters. Although the applicant asserts a post-service diagnosis of PTSD, he did not submit medical documentation. (1) Medical records indicate from May 1968 through February 1969, he presented multiple times with fainting and headaches. When first reported, he was referred to an Internist who determined he was having vasovagal syncope; a condition in which the body is overreacting to an external factor such as stress, anxiety/emotional distress, heat, long periods of standing, etc. In June 1968, mental health was consulted noting "mild situational anxiety" determining he was fit for duty; he was experiencing anxiety in response to situations, but within what would be expected versus clinical or mental illness. In February 1969, the physician highlighted the syncope, headaches, and situational anxiety were noted on his entrance physical; existed prior to service (EPTS) versus service incurred and had not reached a level to suggest service aggravated. (2) His exit physical stated, "There is no reasonable grounds for belief that this individual is or ever has been mentally defective, deranged, or abnormal. A psychiatric examination is not deemed to be appropriate." b. In summary, there is insufficient documentation to support he had a psychiatric condition while in-service and/or a psychiatric condition contributed to his misconduct; the applicant’s basis for separation is not mitigated. 17. On 19 August 2019, the ARBA staff provided the applicant a copy of the advisory and gave him the opportunity to submit a statement or additional evidence on his behalf. He did not respond. 18. The applicant requests his discharge be upgraded due to addiction to morphine he was suffering from in Vietnam. His service record shows he enlisted at the age of 17 completed training and assigned to Vietnam at the age of 18. He received conduct and efficiency ratings of excellent from the time he enlisted through his tour in Vietnam. He completed his tour in Vietnam and failed to report to his follow-on assignment, where he started to receive unsatisfactory conduct and efficiency ratings and being accounted for as AWOL. He was confined and went AWOL a second time during confinement and later discharged. He was only charged with the period of AWOL from 6 June to 24 July 1970, which resulted in him requesting a chapter 10 separation and being discharged from the Army at the age of 20 years and 7 months. a. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. b. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness provided 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, including PTSD. 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. 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. c. Army Regulation 635-200, Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. The ARBA clinical psychologist states there is insufficient evidence to support the applicant had a psychiatric condition while in the service or a psychiatric condition contributed to his misconduct. His basis for separation is not mitigated. 19. In reference to the applicant's contention of being exposed to Agent Orange, this Board has no means of verifying what geographical locations in which you served. Therefore, it appears your issue would be more appropriately addressed by contacting the Department of Veterans Affairs. 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, his record of service to include a tour in Vietnam, the change in his conduct and efficiency ratings, the frequency and nature of his misconduct and the reason for his separation. The Board considered the absence of medical documentation supporting a diagnosis of PTSD and the conclusions of the advising official; there is insufficient evidence to support the applicant had a psychiatric condition while in the service or a psychiatric condition contributed to his misconduct. The Board did not find any evidence of post-service achievements or letters of reference, provided by the applicant, in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis 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. 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 Army Board for Correction of Military Records (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. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the policy for administrative separation of enlisted personnel, it provides. a. Chapter 10 is for those members have 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 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 based on 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. ABCMR Record of Proceedings (cont) AR20180016572 7 1