ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180016996 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: ? DD Form 149 (Application for Correction of Military Record) 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 theprevious consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-07744 on 17 December 1997. 3. The applicant states at the time of his discharge he was 20 years old and in Vietnam.He was mental behaviors (PTSD) prior to being discharged. He has been treated for it and other illnesses that he received in country. Had he been treated for his illness while in Vietnam, he would have received a different discharge. He can only say he was young and dumb but never disciplined for anything; he was a model Soldier. He tried to get healthcare from Veterans Administration. 4. On 6 May 1970, the applicant was inducted into the Army of the United States at theage of 19. He completed initial entry training with conduct and efficiency rating as excellent. On 3 October 1970, he was then assigned as a clerk typist to his first duty assignment in Vietnam. 5. On 17 June 1970, the applicant underwent a mental hygiene consultation whichshows the psychiatrist deemed him mentally responsible and could distinguish between right and wrong. The applicant did not warrant separation under the provisions of Army Regulation (AR) 635-40A AND 635-40B (Physical Evaluation for Retention, Separation, 1 or Retirement for Physical Disability). He also stated the applicant had a character or behavior disorder classified as 7930. Observation, psychiatric, no disease found. LOD, Yes. 6. On 25 November 1970, a Criminal Investigation Division (CID) report shows it was recommended the applicant be charged with committing an assault upon a noncommissioned officer (NCO) by waving an M-16 weapon in his presence. 7. His record is void of a separation packet or other evidence that shows the specificcircumstances surrounding his separation, however, on 12 April 1971, discharge orders were published with an effective date of discharge for the applicant as 12 April 1971, under other than honorable conditions, in accordance with Army Regulation 635-200. 8. The applicant’s record is void of a charge sheet or separation packet. His DD Form214 shows: • Separation Date: 12 April 1971 • Net Active Service: 8 months, 7 days • Reason and Authority: Para 10-6, AR 634-200, SPN 246 • Type of Separation: Discharge • Character of Service: Under Other Than Honorable Conditions (UOTHC) • Foreign Service: 6 months, 10 days • Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized: NDSM, VSM, EXP M14, SPS M16 9. At the time of the applicant's discharge, PTSD was largely unrecognized by themedical 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. 10. Boards are to give liberal consideration to veterans petitioning for discharge reliefwhen 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. 11. The applicant states, he was young and dumb but never disciplined for anything; he was a model Soldier. During his time in Vietnam he experienced mental issues and has been treated for it and other illnesses that he received. Had he been treated for his illness while in Vietnam, he would have received a different discharge. He also tried to get healthcare from Veterans Administration. His available medical records show he was seen on several different occasions for hemorrhoids; he also had a temporary shaving profile; he underwent a mental hygiene consultation by a psychiatrist who stated the applicant had a character or behavior disorder. His record shows he completed 6 months and 10 days of service. His only duty assignment was in Vietnam at the age of 19. He was awarded the National Defense Service Medal and the Vietnam Service Medal. 12. The applicant applied to the Army Discharge Review Board (ADRB) and wasdenied on 4 June 1980. The board stated guilt or innocence is not the function of the ADRB and noted the applicant requested the discharge in lieu of a court-martial after being advised by a JAG officer determining the applicant was properly discharged. 13. Army Regulation 635-200, Chapter 10, is a voluntary discharge request in-lieu oftrial by court martial. 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. 14. The ARBA clinical psychologist, when asked to determine if there is a nexusbetween a behavioral health condition and the misconduct resulting in the applicant’s discharge stated based on a thorough review of available medical records, there is sufficient documentation to support the existence of a behavioral health condition at the time of discharge. PTSD is not a mitigating factor for the misconduct that led to the applicant’s separation. 15. The applicant requests an upgrade so that he may receive benefits. The ABCMR isnot authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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: 1. After reviewing the application and all supporting documents, the Board found thatrelief was warranted. 2. The ARBA clinical psychologist found that based on a thorough review of available medical records, there is sufficient documentation to support the existence of a behavioral health condition at the time of discharge. PTSD is not a mitigating factor for the misconduct that led to the applicant’s separation. The Board is given liberal consideration for veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions. The Board may also grant clemency when it determines that it is warranted. The Board also noted the applicant’s service in a theater of war. Accordingly, the Board determined that upgrade of the discharge is warranted. AR20180016996 BOARD VOTE: 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: 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 amending his DD Form 214 for the period of service ending 12 April 1971 to reflect in item 13 a. (Character of Service) - "Honorable" vice "under other than honorable conditions." X 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 militaryrecords 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), set forththe basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states a member who committed an offense or offenses for which theauthorized punishment included a punitive discharge may, at any time after the charges AR20180016996 have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 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 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. 4. 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. 5 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 AR20180016996 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 courtmartial; 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) AR20180016996 ABCMR Record of Proceedings (cont) AR20180016996 2 4 ABCMR Record of Proceedings (cont) ABCMR Record of Proceedings (cont) 5 5 ABCMR Record of Proceedings (cont) 5