ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 July 2019 DOCKET NUMBER: AR20180016730 APPLICANT REQUESTS: Through counsel the applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief for Petitioner (Attorney’s Statement and Exhibits Enclosed) * Attorney for the Applicant Statement * Exhibit A, Applicant’s Affidavit * Exhibit B, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 21 January 1970 and DD Form 215 (Correction to DD Form 214) * Exhibit C, Letter from U.S. Army Reserve Personnel Center (USARPC), dated 6 March 1995 * Exhibit D, Combat Infantryman Badge (CIB) Certificate, dated 18 October 1967 * Exhibit E, Purple Heart (PH) Certificate, dated 15 June 1968 * Exhibit F, Medical Condition – Physical Profile Record, dated 22 March 1968 * Exhibit G, Three Applicant’s Optician Certifications * Exhibit H, Four Letters/Character References * Exhibit I, Medical Progress Notes, dated 4 December 2012 * Exhibit J, Medical Progress Notes, dated 10 October 2012 * Exhibit K, Medical Progress Notes, dated 9 August 2012 * Exhibit L, Medical Progress Notes, dated 5 December 2012 * Exhibit M, Medical Progress Notes, dated 30 May 2012 * Exhibit N, Medical Progress Notes, dated 3 July 2012 * Exhibit O, Medical Progress Notes, dated 23 May 2012 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 Numbers AC9506522 on 8 November 1995 and AR20120019923 on 11 June 2013. 2. Counsel provides in a statement, which includes: * an introduction of the applicant’s service in Vietnam, the applicant’s being diagnosed with post-traumatic stress disorder (PTSD), and being discharged with an under other than honorable conditions discharge * facts regarding his enlistment and combat in Vietnam from the applicants birth to the events that led to him receiving the Purple Heart * a synopsis of the applicant’s conduct that led up to his discharge * the applicant’s life after his discharge * an explanation of the applicant’s PTSD diagnosis * an explanation of the current DoD guidance on discharge upgrades * an argument that the applicant’s discharge should be upgraded to honorable based on DoD guidance in the Hagel and Kurta Memos * a conclusion that: * his combat-related PTSD, together with the circumstances surrounding his discharge and the manner in which he has lived his life since leaving the service, outweigh his UOTHC discharge * in light of the guidance provided in the Hagel and Kurta Memos, his request for an upgrade to an honorable discharge should therefore be granted 3. Counsel submitted an affidavit from the applicant. The applicant states: a. He was born on 4 August 1948 and raised in Independence, MO. His father, was an immigrant from Italy and worked as a steelworker. His mother was also an immigrant from Italy and was a cafeteria worker. He did not experience any trauma prior to joining the Army and being deployed to Vietnam. His childhood was great even though they did not have a lot of money. In 1967, he quit high school early to join the Army. He attended basic training at Fort Leonard Wood, MO, combat infantry airborne training at Fort Gordon, GA, and airborne jump school at Fort Benning, GA. In 1967, he deployed to Vietnam as a member of the 101st Airborne Division. b. During his tour in Vietnam, he spent most of his time on search and destroy missions. It was like being on a different planet. He had not seen anything as frightening as he did when he was in Vietnam. He was involved in a lot of combat while on patrols. At one point, they were in the jungle for 60 days straight. He had to keep his head down in order to survive. There were many casualties in his unit and many of them were just kids. These deaths haunts him to this day. He lost a Soldier in his unit who had gotten a "Dear John" letter from his girlfriend. After he received the letter, the next firefight they were in, he was shot and killed. He still feels guilty about his death. This incident caused him to avoid relationships with other Soldiers, in case they were killed. c. In Vietnam, he experienced stressors that resulted in high levels of anxiety. They were routinely going on combat patrols and he had to be vigilant, constantly. He never felt safe. He had to be this way to survive. If you were not vigilant, you would die. But even if you were vigilant, sometimes you would still die. They were in firefights with the enemy every single week. d. In late January 1968, his platoon was on patrol in the jungle and were then ambushed by the enemy. He was shot in the leg by an enemy sniper hiding in a tree. He was able to shoot and kill him before he himself was killed. He was evacuated from the firefight and then sent for treatment at a hospital in Japan for a month. He was then sent back to the United States. He was treated at Fort Fitzsimmons, CO, outside of Denver, CO. The surgeons operated on his leg a couple of times and tried to rehabilitate it. He had to use a cane and was given a profile to not stoop, march, or crawl. He was reassigned from the 101st Airborne and lost his jump status. e. He was transferred to a mechanized unit at Fort Carson, CO. When he was at Fort Carson, he did not know what was happening to him. He was very scared, he did not feel safe, he could not breathe, he was jumpy all the time, and he had difficulty sleeping. He could not stop thinking about what he had seen in Vietnam. Soldiers in his unit at Fort Carson were using drugs, like marijuana and lysergic acid diethylamide (LSD). He did not use any drugs; however, his chain of command accused him of doing so. His stress and anxiety from his combat experience, coupled with his frustration over his treatment in his unit, caused him to go absent without leave (AWOL). This is the only time he committed misconduct while he was in the Army and this was the reason he was administratively discharged with an under other than honorable conditions discharge. f. When he came home, he continued to have several problems with anxiety, stress, and hypervigilance. He had flashbacks, he was agitated, he was irritable, and he was easily prone to being angry. He blamed himself for things that were out of his control. He had difficulty sleeping, had nightmares, isolated himself, always on alert, jumpy, and nervous. He would sit on the porch and look for any signs of trouble. He told his mother not to startle him and to shake his foot to wake him up. He also told her not to come near his face when he was sleeping. His anxiety and other feelings and emotions from Vietnam continue to this day. g. Ultimately, he was diagnosed by the Department of Veterans Affairs with PTSD from his Vietnam combat experience. After his discharge, he obtained his General Equivalency Diploma (GED). He passed the GED test on his first attempt. He went to college for a couple of semesters. He became a certified optician and optical technician, both requiring tests. He owned two optical shops. He raised his daughter alone since she was four years old without any assistance. Her mother vanished and he never received any child support. He now has four grandchildren and four great- grandchildren. h. He has tried his best to live a good life. He has been a good husband and father and has not been in any trouble since he was discharged from the Army. His military records were destroyed in the fire at the National Personnel Records Center in 1973. He has a few of his military records, i.e., his DD Form 214 and his Purple Heart award message. 4. On 16 January 1967, at the age of 19 years old, the applicant enlisted in the Regular Army for a term of 3 years. After completing initial entry training, he was assigned overseas in Vietnam. 5. The Board received his personnel records which appear to be complete; however, as a precaution for the Board it is noted his official military personnel file contains a letter to the applicant dated 6 March 1995 that notifies him it is believed his records were lost or destroyed in a fire that destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case. 6. His record shows on 24 March 1967, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 17 March 1967 and remaining absent until 21 March 1967. 7. On 26 May 1969, he was convicted of special court-martial for one specification of being AWOL from 28 November 1968 and remaining absent until 26 April 1969. He was sentenced to reduction to private one (PV1)/E-1, confinement at hard labor for six months, and forfeiture of pay of $73.00 per month for six months. On 28 May 1969, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement at hard labor for six month, and forfeiture of pay of $50.00 for six months and ordered it executed. The execution of the sentence of confinement at hard labor was suspended for six months. 8. On 5 June 1969, the applicant went AWOL and on 30 August 1969, he was dropped from the rolls. On 20 November 1969, he was apprehended by civilian authorities and returned to military control. 9. On 21 November 1969, court-martial charges were preferred against the applicant for one specification of being AWOL from 5 June 1969 and remaining absent until 20 November 1969. 10. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. The applicant elected not to submit a statement on his own behalf. 11. The applicant's chain of command recommended approval of his request and on 31 December 1969, the appropriate separation authority approved the applicant's request directing the applicant be reduced to the lowest grade and he be issued an Undesirable Discharge Certificate. 12. On 21 January 1970, he was discharged accordingly. His service was characterized as UOTHC with an Undesirable Discharge Certificate. He completed 2 years and 18 days of total active service, with 6 months and 29 days of Foreign Service. His DD Form 214, amended by DD Form 215 shows: * He was awarded or authorized: * National Defense Service Medal * Parachutist Badge * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with 60 Device * M-14 Rifle Marksman Marksmanship Qualification Badge * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Expert Qualification Badge * 81mm Mortar Expert Qualification Badge * Overseas Service Bar * Purple Heart * 352 Days Lost: from 28 November 1968 - 30 May 1968; 5 June 1969 – 19 November 1969 13. On two occasions, the applicant petitioned the ABCMR requesting an upgrade of his character of service. On both occasions, 8 November 1995 and 11 June 2013, the ABCMR denied his requests. 14. The applicant provides: * Brief for Petitioner (Attorney’s Statement and Exhibits enclosed) * Attorney for the Applicant Statement (summarized above) * Exhibit A, Applicant’s Affidavit (summarized above) * Exhibit B, DD Form 214 for period ending 21 January 1970 and DD Form 215 * Exhibit C, Letter from USARPC, dated 6 March 1995, notifying the applicant that his records were destroyed in the 1973 fire at the NPRC * Exhibit D, CIB Certificate, dated 18 October 1967, showing he was awarded the CIB while in Vietnam * Exhibit E, PH Certificate, dated15 June 1968, showing he was awarded the PH for wounds received in action while in Vietnam * Exhibit F, Medical Condition – Physical Profile Record, dated 22 March 1968, showing he had a fracture in his right femur, healed and he received a profile for no crawling, stooping, running, jumping, or prolonged standing or marching * Exhibit G, Three Applicant’s Optician Certifications, showing that he completed the opticianry course and he was certified and registered as an optician * Exhibit H, Four Letters/Character References, attesting to his character as a husband, father, and a friend, and his patriotism as a Soldier * Exhibit I - O, Seven Medical Progress Notes, showing the applicant has a history of PTSD and providing a list of symptoms of PTSD as described by the applicant 15. The applicant’s medical records (military medical records and VA records) were forwarded to the Army Review Boards Agency (ARBA) medical advisor for review. As a result, on 26 March 2019, the ARBA medical advisor rendered an advisory opinion in the processing of this case. The advisor opined, in pertinent part: a. There is no indication in the applicant’s military records that he failed to meet military medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness). b. A review of the applicant’s electronic medical record Joint Legacy Viewer (JLV) revealed: (1) The applicant’s VA Medical Problem List includes the following behavioral health-related conditions: psychotic disorder, not otherwise specified (NOS); major depressive disorder (MDD), recurrent, moderate; PTSD; and anxiety disorder. (2) The VA records indicate that the applicant served with the 101st Airborne Division while deployed to Vietnam. His primary duty was involved search and destroy missions. The applicant spent much of his tour engaged in combat in the jungles of Vietnam. (3) His primary traumatic stressor occurred when he and another soldier were forced to clear huts and were caught in a firefight that lasted for hours. The other soldier, who had received a Dear John letter that morning, was killed in the firefight. The applicant reported to the VA that he still feels guilty about his friend’s death and he still has nightmares and intrusive recollections of this event. c. The applicant has been diagnosed with PTSD related to combat by the VA. Review of the applicant’s military records indicates that they lack documentation of any PTSD symptoms. This fact, however, does not necessarily mean that the applicant did not have PTSD while on active duty. In the era of the applicant’s military service, PTSD symptoms were frequently not recognized. Oftentimes, in such cases, the presence of PTSD has to be inferred from behavioral indicators. Such is the case with this applicant. Review of his military records indicates that the two incidents of AWOL which led to the applicant’s discharge from the Army occurred after the applicant was deployed to the Republic of Vietnam. As PTSD is associated with avoidant behaviors, there is likely an association between the applicant’s diagnosis of PTSD and his multiple offenses of being AWOL. As such, the applicant’s diagnosis of PTSD is considered mitigating for these offenses. d. 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 IAW AR 40-501. The applicant’s diagnosis of PTSD is a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military. 16. Counsel for the applicant responded to the medical advisory opinion. He states the advisory opinion contains a summary review of the applicant’s electronic medical record. The opinion states that the applicant’s primary traumatic stressor according to the medical records occurred when a friend of his was killed during a long firefight with the enemy. It is certainly true that this event is the one that most haunts the applicant to this day and the one he recounts more than any other in describing the anguish he feels about his wartime experience. They think it is important; however, to point out that the applicant also endured the stressor of being shot through the leg by enemy sniper. This injury led to him being medevac'd from the battlefield and undergoing a long period of rehabilitation and recovery. He still suffers sequelae to this day from his gunshot wound. 17. 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. The applicant states through his counsel his combat-related PTSD, together with the circumstances surrounding his discharge and the manner in which he has lived his life since leaving the service, outweigh his 0TH discharge. In light of the guidance provided in the Hagel and Kurta Memos, his request for an upgrade to an honorable discharge should therefore be granted. His record shows he enlisted at the age of 19 years old, he accepted one NJP for AWOL, he was convicted by special court-martial for AWOL, charges were preferred against him for being AWOL, and he had 353 days lost due to being AWOL. He completed 24 months and 18 days of his 36 months contractual obligation. 18. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 19. The ARBA medical advisor opined the applicant’s diagnosis of PTSD is a mitigating factor in the misconduct that resulted in his discharge from the military. 20. 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, the advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s service record, his service in Vietnam, his award of the Purple Heart, the frequency and nature of his misconduct and his statement specific to his experiences. The Board further considered the letters of support he provided, his diagnosis of PTSD and the conclusion of the advising official and his rebuttal. The Board found that liberal consideration and clemency applied and that his PTSD and experiences in Vietnam mitigated his misconduct. The Board determined that the character of service he received at separation was unjust and that a correction is required. The Board concurred with the corrections stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the corrections stated in the Administrative Note(s) below, the Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period of service ending 21 January 1970 to show in item 24 (Character of Service) – “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): A review of the applicant's record shows his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 21 January 1970, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, item 24 (Decorations, Medals, Badges, Commendations, and Campaign Ribbons Awarded or Authorized) by: * Deleting the following entries: * Parachute Badge * Vietnam Service Medal * Combat Infantry Badge * Adding the following entries: * Parachutist Badge * Combat Infantryman Badge * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 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. d. When a member is to be issued an undesirable discharge, the convening authority will direct his immediate reduction to the lowest enlisted grade. 2. 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. 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 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. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20180016730 10 1