ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20190000275 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement 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 (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: a. He has been a good citizen since his discharge. He had combat service, but psychiatric problems impaired his ability to serve. When he came back from Vietnam, he just couldn’t adjust to stateside duty. b. In November 1970, he was in the process of signing out to get his discharge, but the night before he finished signing out he was confronted by sergeants from the squad for not helping clean the latrine and he was beaten up by three of them. So he left Fort Hood and went to Port Lavaca, TX, to see a doctor and have his nose set. The doctor said it was broken in three places. His car was also repossessed by one of the sergeants because he had a car lot. These incidents are the reasons why he did not stay at his unit. 3. The applicant enlisted in the Regular Army on 11 October 1968. 4. A DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 November 1968, shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the date of the form for absenting himself from his unit without proper authority on 23 November 1968 and remaining absent until 25 November 1968. 5. Headquarters First Combat Support Training Brigade Summary Court-Martial Order Number 37, dated 2 April 1969, shows he was arraigned and tried before a summary court-martial that convened Fort Huachuca, AZ on 28 March 1969, where he was charged with and found guilty of absenting himself from his unit without authority from 28 February 1969 through 10 March 1969. 6. On 28 March 1969, he was sentenced to confinement at hard labor for 1 month, reduction to the lowest enlisted pay grade, and forfeiture of $73.00 per month for 1 month. 7. Headquarters, U.S. Army Combat Surveillance and Electronic Warfare School/Training Center Special Court-Martial Order Number 116, dated 7 August 1969, shows he was arraigned and tried before a special court-martial that convened at Fort Huachuca, AZ on 25 July 1969, where he was charged with and found guilty of absenting himself from his unit without authority from 24 April 1969 through 30 May 1969. 8. On 25 July 1969, he was sentenced to confinement at hard labor for 6 months and forfeiture of $82.00 per month for 6 months. 9. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 14 January 1970 through 16 December 1970. 10. On 14 November 1970, his immediate commander requested the applicant be barred from reenlistment in the Regular Army for the following reasons: * he was counseled on numerous occasions for his poor conduct and efficiency * he demonstrated a complete disinterest and apathy in all his undertakings * he was unsuitable for reenlistment due to his habits, which were detrimental to the maintenance of good order and discipline * he was absent without leave (AWOL) for 2 days from 23 November 1968 through 24 November 1968 * he was AWOL for 10 days from 28 February 1969 through 9 March 1969 * he was found guilty and sentenced by summary court-martial on 2 April 1969 * he was confined for 25 days from 28 March 1969 through 21 April 1969 * he was AWOL for 69 days from 24 April 1969 through 1 July 1969 * he was confined for 96 days from 25 July 1969 through 19 October 1969 * he was found guilty and sentenced by summary court-martial on 7 August 1969 11. A DA Form 2627-1, dated 17 November 1970, shows he accepted NJP under Article 15 of the UCMJ for without authority, failing to go at the time prescribed to his appointed place of duty at Long Binh, Vietnam, on 17 November 1970. 12. On 29 November 1970, the applicant’s bar from reenlistment in the Regular Army was approved. 13. Additional DA Forms 2627-1, show he again accepted NJP under Article 15 of the UCMJ on the following dates for the following misconduct: * 17 March 1971, for absenting himself without authority from his unit from 3 March 1971 through 17 march 1971 * 23 March 1971, for absenting himself without authority from his place of duty on 21 March 1971 * 2 April 1971, for absenting himself without authority from his place of duty on 1 April 1971 14. His records contain a partial DD Form 458 (Charge Sheet), which shows he was charged on an unspecified date with absenting himself without authority from his unit from 13 April 1971 through 13 October 1971. 15. A Fort Hood Form 1388 (Mental Status Evaluation), dated 26 October 1971, shows the applicant underwent a mental status evaluation and was found to have no significant mental illness, have the mental capacity to understand and participate in board proceedings, and met retention standards under the provisions of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 16. A medical statement, dated 27 October 1971, states a complete review of physical and mental examinations failed to reveal any defects which would have contributed to the applicant’s misconduct. He was found physically and mentally fit for duty without physical profile limitations. He was found responsible for his acts able to understand and participate in board proceedings. 17. On 5 November 1971, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He consulted with 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 the procedures and rights available to him. He indicated he was submitted statements in his own behalf, but they are not in his available records for review. 18. In lieu of a personal statement, the applicant’s records contain an undated statement made on his behalf by his defense counsel, which states: a. The applicant was pending a court-martial for a period of AWOL and was assigned to the U.S. Army Personnel Control Facility, Fort Hood, TX, at the time. He completed a tour of duty in Vietnam from 14 January 1970 through 19 December 1970 and was awarded the National Defense Service Medal, overseas service bars, Vietnam Campaign Medal with Device (1960), and Vietnam Service Medal. b. The applicant left military duty because of adjustment problems at his last duty station. Upon returning to Fort Lewis, WA, he faced many adjustment problems. Almost everyone in his company was a Vietnam veteran and almost everyone was a supply clerk, like himself. There was no beneficial work to be done by a majority of the troops. He volunteered to drive a truck, but was put on a paint detail instead. He finally was not able to cope with his difficulties any longer and left military control. c. During his absence, he married and is eager to start a new life and support his family. If discharged he felt he could be employed by Evinrude Company in Port Lavaca, TX, as an outboard motor mechanic. He is requesting a discharge from further military duty to be able to care for his family and feels he would not be able to perform effectively as a Soldier if he were to remain in military custody. He requested the highest discharge possible under the circumstances. 19. On 5 November 1971, both his immediate and intermediate commanders recommended approval of the request for discharge and recommended the applicant receive an Undesirable Discharge Certificate. 20. On 10 December 1971, the Headquarters III Corps and Fort Hood staff Judge Advocate reviewed the request for discharge and recommended approval of the request with the issuance of an Undesirable Discharge Certificate. 21. On 10 December 1971, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 22. His DD Form 214 shows he was discharged on 22 December 1971 for the good of the service under the provisions of chapter 10, Army Regulation 635-200, and his service was characterized as UOTHC. He completed 2 years, 1 month and 9 days of active service during this period with 193 days of lost time. 23. There is no evidence in his military records he was diagnosed with or treated for any physical or mental conditions during his period of service. 24. The applicant applied to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge. On 17 October 1974 he was advised that his request was denied by the ADRB, as they determined he was properly discharged. 25. On 10 October 2019, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion, stating the following: a. All available records were reviewed. His entrance physical did not endorse any behavioral health symptoms or conditions, to include substance use. His service medical records contain encounters for physical ailments; however records are void of appointments reflecting the physical assault he reported occurred in November 1970. There is one psychiatry referral in November 1970 for substance treatment where the applicant had reported using heroin for 2 months. His records are void of follow up care. On his exit physical, he endorsed trouble sleeping, otherwise his report and exam were normal. His Mental Status Examination cleared him for separation. His Department of Veterans Affairs records are void of contact. b. Based on a thorough review of the available records, there is insufficient evidence to support a behavioral health condition contributed to the applicant’s misconduct. Rather, records support a well-functioning Soldier at the time of his AWOL. He married and maintained employment, which would have been atypical. Given his pre-deployment pattern of misconduct, it is more likely than not his post- deployment misconduct was a continuation of a characterological disorder which provides context but not mitigation. Irrespective of this possibility, there is a lack of documentation to determine if the applicant has a psychiatric condition mitigating his misconduct. A copy of the complete medical advisory was provided to the Board for their review and consideration. 26. On 18 October 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 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 deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim to have had psychiatric problems and the review and conclusions of the medical advising official based on available medical records. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by psychiatric problems. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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 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. 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, 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, on those conditions or experiences. 3. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190000275 6 1