BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20180017023 APPLICANT REQUESTS: His undesirable discharge, for the period ending 10 February 1969, be upgraded to either an under honorable conditions (general) discharge or an honorable discharge, under the provisions of the Memorandum for Secretaries of the Military Department, dated 3 September 2014 [Hagel Memorandum]. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 9 November 2018, with self- authored statement * statements from his spouse and daughter * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 18 April 1965 and 10 February 1969 * Memorandum for Secretaries of the Military Departments, dated 3 September 2014 [Hagel Memorandum] * Standard Forms (SF) 88 (Report of Medical Examination) * Army Commendation Medal (ARCOM) award citation * DA Form 20 (Enlisted Qualification Record) * DA Form 20B (Insert Sheet to DA Form 20) * Special Court-Martial Number 1887, issued by Headquarters, Troop Command, U.S. Army Training Center, Fort Ord, California on 9 July 1968 * DD Form 458 (Charge Sheet) * Special Court-Martial Order Number 2420, issued by Headquarters, Troop Command, U.S. Army Training Center, Fort Ord, California on 9 September 1968 * Extracts of Military Records of Previous Convictions * Special Court-Martial Order Number 2471, issued by Headquarters, Troop Command, U.S. Army Training Center, Fort Ord, California on 13 September 1968 * Summarized Record of Trial by Special Court-Martial * Special Court-Martial Order Number 2662, issued by Headquarters, Troop Command, U.S. Army Training Center, Fort Ord, California on 10 October 1968 * DA Form 2627-1 (Record of Proceedings Under Article 15, [Uniform Code of Military Justice] UCMJ) * FGHSTC Form 3-50R (Mental Hygiene Consultation Service Evaluation) * statement from the Commander, Correctional Holding Detachment, Fort Gordon, Georgia * separation processing documents * DA Form 8-275-2 (Clinical Record Cover Sheet) * two photographs FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 that following his return from service in the Republic of Vietnam, he had behavior changes related to undiagnosed post-traumatic stress disorder (PTSD) that lead to a pattern of misconduct and his ultimate administrative elimination under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). He was not offered counseling following his deployment and he served before PTSD was a recognized disability. He was also harassed while he was confined at Fort Ord, California, as documented at his special court-martial on 13 September 1968. This harassment further exacerbated his misconduct pattern. 3. The applicant enlisted in the Regular Army on 8 April 1963. He was honorably discharged on 18 April 1965 for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 19 April 1965. 5. The applicant accepted nonjudicial punishment (NJP) on 23 July 1965, under the provisions of Article 15 of the UCMJ, for being absent without leave (AWOL) and for violating a lawful general regulation by operating a privately owned vehicle (POV) without a valid POV operator's license, each infraction on or about 21 July 1965. 6. The applicant served in the Republic of Vietnam from on or about 20 August 1966 through on or about 19 August 1967. 7. Before a special court-martial on or about 9 July 1968, at Fort Ord, California, the applicant was convicted, pursuant to his plea, of being AWOL from on or about 2 April 1968 through on or about 24 June 1968. He was sentenced to confinement at hard labor for six months, a forfeiture of $90.00 pay per month for six months, and reduction in rank/grade to private/E-1. His sentence was approved and ordered executed. 8. Before a special court-martial on or about 13 September 1968, at Fort Ord, California, the applicant was convicted, pursuant to his plea, of being AWOL from on or about 30 July 1968 through on or about 4 September 1968. He was sentenced to confinement at hard labor for six months and a forfeiture of $73.00 pay per month for six months. His sentence was approved and ordered executed. 9. The applicant accepted NJP on 13 January 1969, under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 7 November 1968 through on or about 13 December 1968. 10. The applicant underwent a mental hygiene evaluation on 16 January 1969, at Fort Gordon, Georgia. The attending psychiatrist found: "Personality, emotionally unstable, chronic, moderate, manifested by inability to adjust to military environment, emotional instability, poor impulse control with escape-type behavior (three AWOLs). Stress: Undetermined. Predisposition: Moderate; ineffective parental guidance with absence of adequate father-son relationship; family history of alcoholism, problems with adjustment to authority, resulting in arrest for theft; marginal academic adaptation with school dropout. He volunteered for draft to escape prosecution." 11. The applicant's commander notified the applicant on 20 January 1969 that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The applicant acknowledged receipt of the notification on 20 January 1969. He consulted with counsel, was presented with his rights, and declined to make a statement in his own behalf. 12. The applicant's commander formally recommended the applicant's discharge on 20 January 1969, under the provisions of Army Regulation 635-212, for unfitness. 13. The separation authority approved the recommendation for discharge on 29 January 1969, under the provisions of Army Regulation 635-212, paragraph 6a(1) and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. The applicant's DD Form 214 shows he was discharged on 10 February 1969, in the rank of private/E-1. He received an Undesirable Discharge Certificate. 15. The applicant provides a self-authored statement and statements from his spouse and daughters attesting to his good character and post-service conduct. He also provides copies of numerous documents that are currently filed in his official military personnel file, which were reviewed during the processing of this case. 16. During the processing of the case, an advisory opinion was received from the Army Review Boards Agency (ARBA) staff psychologist, who was asked to determine if there was a nexus between the applicant's reported behavioral health difficulties and the misconduct that resulted in his discharge. The advisory official noted: a. A review of the electronic Department of Veterans Affairs (VA) medical record indicates the applicant has not been treated or evaluated in the VA system. He does not have a service connected disability rating. b. It is more likely than not that the was suffering from PTSD not Antisocial Disorder. However, PTSD was not identified as a diagnosis until the 1980s. The applicant's difficulty with authority figures and avoidance (AWOL) behaviors were likely the result of PTSD. c. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum, there is 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 in accordance with Army Regulation 40-501 (Standards of Medical Fitness). PTSD is a mitigating factor in the misconduct that led to his discharge. 17. The applicant was provided a copy of the advisory opinion for his information and/or possible rebuttal. He did not respond. 18. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and the Department of Defense (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. 19. 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. 20. The Board should 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. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, the reason for his separation and his diagnosis prior to separation. The Board considered the applicant’s claim of PTSD and the review and conclusions of the medical advising official regarding his claim. The Board found mitigating circumstances for the applicant’s misconduct. Based on a preponderance of evidence, the Board determined that liberal consideration applied and the character of service the applicant received upon separation should be upgraded. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 10 February 1969 to reflect in item 13a (Character of Service) – “General, under honorable conditions” vice “Under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the character of service to “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): Not Applicable REFERENCES: 1. Title 10, U.S. Code, 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 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), in effect at the time, governed the policies and procedures for the separation of enlisted personnel. This regulation provided that: a. 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. b. 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. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20180017023 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180017023 9 ABCMR Record of Proceedings (cont) AR20180017023 6