ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings . BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190001006 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) in lieu of the DD Form 149 (Application for Correction of Military Records) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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: AC93-07367, on 11 August 1993; AR2000035093, on 29 June 2000; and AR20120006136, on 17 April 2012. 2. The applicant states, he was a good Soldier who served his country in the Republic of Vietnam. His exposure to combat caused him to develop mental problems and act out. a. Upon his return to the United States, he was unable to shake the trauma of all the killings he experienced over there. All he wanted was to go home and die, so he went absent without leave (AWOL) (absent without leave) and kept getting in trouble trying to get home. b. He has now been diagnosed with post-traumatic stress disorder (PTSD), prostate cancer (associated with exposure to Agent Orange), and ischemic heart disease (a narrowing of heart arteries that results in an inadequate supply of oxygen to the heart); this upgrade would allow him to obtain medical care through the Department of Veterans Affairs (VA). c. The applicant also wanted the Board to consider another factor: nearly a year before he entered the Army, both of his parents died in an automobile accident, from which he also sustained severe injuries; he notes he was still under a doctor's care when he enlisted. He joined the Army to give his life meaning and direction; he thought the Army could become his family. d. He served his country proudly, but the experience left him mentally scarred; he feels, over the years, he has been punished over and over again, and he believes he has "paid his dues." He is unable to receive compensation for the health issues he incurred while on active duty and, at age 70, he would "love to finally lay these burdens down." 3. The applicant's service records show: a. On 18 May 1966, at the age of 17 and with consent of his legal guardian (a bank), the applicant enlisted into the Regular Army for a 3-year term. His consent, declaration of parent or legal guardian shows both of his parents are deceased. He completed initial training and awarded military occupational specialty (MOS) 51B (Carpenter) and on 6 August 1966 reported to his first unit of assignment, 93rd Engineer Battalion, Fort Lewis, WA where he was promoted to private (PV2/E2) and an advanced promotion to private first class (PFC/E3). b. On 18 April 1967, the applicant's chain of command promoted him to specialist four (SP4)/E-4. On 2 June 1967, the applicant moved with his battalion on unit permanent change of station orders from Fort Lewis to the Republic of Vietnam. c. On 15 February 1968, while still assigned in Vietnam, the applicant took leave in Japan; his leave ended on 24 February 1968 but, despite the availability of flights, the applicant failed to return until 4 March 1968. On 12 March 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for AWOL from 25 February to 4 March 1968. d. The applicant completed his Vietnam tour on or about 1 June 1968; orders reassigned him to Fort Knox, KY, and he arrived on 8 July 1968. Per the applicant's DA Form 20 (Enlisted Qualification Record), the applicant's chains of command rated his conduct and efficiency, through his departure from Vietnam, as "Excellent". The applicant's DA Form 20 also shows the award of the National Defense Service Medal. e. On 30 July 1968, he departed his Fort Knox unit in an AWOL status, and his unit dropped him from Army rolls on 8 September 1968; he returned to military control on 25 September 1968 (57-day AWOL). f. At some point prior to 2 October 1968, the applicant was reassigned to the Special Processing Detachment (SPD) at Fort Gordon, GA. On 2 October 1968, the SPD reported the applicant as AWOL; he returned to military control, effective 14 October 1968. g. Between 17 October and 20 November 1968, the applicant was AWOL two more times. * He left the SPD on 17 October and returned on 20 October 1968 (4 days); he left again on 22 October 1968 * On or about 19 November 1968, the applicant and two others stole a car in South Carolina; on or about 20 November 1968, civilian authority arrested the applicant and placed him in civilian confinement * On or about 21 November 1968, the civilian authority returned the applicant to military control at Fort Gordon, where his chain of command placed him in military confinement h. On 10 December 1968, consistent with the applicant's pleas, a special court- martial convicted the applicant of violating Article 86 (AWOL), UCMJ, based on three respective periods of AWOL: 2 until 14 October 1968 (12 days), 17 until 21 October 1968 (4 days), and 22 October until 21 November 1968 (30 days). * The court sentenced the applicant to 3 months' confinement, forfeiture of $40 per month for 3 months, and reduction from SP4 to private (PV1)/E-1 * On 12 December 1968, the court-martial convening authority approved the sentence, but suspended the applicant's confinement and reduction to PV1; the applicant instead was reduced to private first class (PFC)/E-3 i. On 12 December 1968, the applicant's chain of command released the applicant to civilian authority so he could face trial in South Carolina for auto theft. On or about 13 January 1969, a South Carolina court convicted the applicant of auto theft and sentenced him to 3 years' confinement; however, the court suspended the sentence and, on or about 20 January 1969, returned the applicant to military control. j. The applicant went AWOL three more times between 7 April and 29 May 1969; he returned to military control from his last period of AWOL on 29 May 1969, and his chain of command placed him in military confinement. k. On 27 June 1969, consistent with the applicant's pleas, a second special court- martial convicted the applicant of violating Article 86, UCMJ for three periods of AWOL: 7 to 13 April 1969 (6 days), 19 April to 19 May 1969 (30 days), and 21 to 29 May 1969 (8 days). The court sentenced the applicant to 6 months' confinement and reduction from PFC to PV1. On 27 June 1969, the court-martial convening authority approved the sentence and ordered its execution; the applicant was held in the Fort Gordon Correctional Holding Detachment (CHD). l. On 3 July 1969, the applicant underwent a mental hygiene evaluation at his commander's request; the examining psychiatrist found no psychiatric diseases and cleared the applicant for administrative separation. m. On 7 July 1969, the applicant's CHD commander recommended the applicant's separation under Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability); the commander's stated reasons for separation were the applicant's established pattern of absenting himself without authorization. The commander cited the applicant's acceptance of NJP for AWOL and two special courts- martial convictions, also for AWOL; the commander additionally noted the applicant's conviction for auto theft by civil authority. The commander rated the applicant's conduct and efficiency as unsatisfactory. n. On 8 July 1969, the applicant's CHD commander advised the applicant of his intent to separate him under AR 635-212 due to unfitness. On 11 July 1969, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action. The applicant waived his right to personally appear with counsel before a board of officers and elected not to submit statements in his own behalf. o. On 29 July 1969, the separation authority approved the commander's recommendation and directed the applicant's undesirable discharge under other than honorable conditions. On 4 August 1969, the applicant was discharged accordingly; his DD Form 214 shows he completed 2 years, 5 months, and 8 days of his 3-year enlistment contract, with 206 days of lost time. He was awarded or authorized the Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and a marksmanship qualification badge. His DD Form 214 shows the applicant's 12 months of foreign service in Vietnam; however the exact dates of Vietnam service are not listed in item 30 (Remarks). p. The applicant's service record includes a VA administrative decision, dated 4 August 1972, which states the applicant's service from 18 May 1966 to 4 August 1969 was deemed to be under other than honorable conditions, and, as a result, the applicant should be precluded from all VA benefits. q. On 16 November 1992, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) The applicant contended the type of discharge he received was too harsh. He argued his behavior deteriorated due to the following factors: the applicant's young age, his exposure to combat situations, and the negative treatment he received from fellow Soldiers because of his Vietnam service. He attributed his alcohol and drug abuse problems to his combat service, and indicated, while on active duty, the Army did not offer him treatment. He additionally noted his parents had died in an automobile accident about 6 months before he enlisted; he was injured in that same accident and was still under a doctor's care for head injuries when he entered military service. He provided letters of recommendation and a local police record to support of his petition. (2) On 11 August 1993, the Board denied the applicant's request after finding the applicant had not submitted his request for relief within the timeframe required, and had failed to present sufficient evidence to warrant relief. r. On 23 December 1999, the applicant filed a request for reconsideration of the ABCMR's decision; he offered arguments similar to those in his first petition. On 29 June 2000, the Army Review Boards Agency (ARBA) administratively closed the request because the applicant had sent it after the 1-year regulatory time limit. The applicant filed a second reconsideration request on 10 November 2011 (unavailable for review); on 17 April 2012, using the same justification as in its 29 June 2000 response, ARBA administratively closed the request. s. In a letter, dated 6 February 2019, ARBA requested the applicant provide copies of medical documents that supported his asserted PTSD diagnosis; the applicant did not respond. t. On 25 October 2019, an ARBA psychologist provided a medical advisory. Based on a review of available records, the ARBA psychologist found those records were void of any behavioral health diagnoses; furthermore, the files did not contain indicators suggesting the applicant had suffered from undiagnosed PTSD. The ARBA psychologist determined the available information was insufficient to affirm a behavioral health condition contributed to the applicant's misconduct; however, "the Board may want to consider an upgrade to a General characterization to allow access to VA services, given the length of time since the misconduct and need for medical care." u. On 29 October 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; the applicant did not respond. 4. The applicant essentially argues he was a good Soldier who served his country in Vietnam; he attributed his misconduct to undiagnosed PTSD, incurred through his exposure to combat. He claimed to have subsequently been diagnosed with PTSD and asserted he had other health conditions sustained while on active duty. He indicated the death of his parents in a car accident, in which he was also injured, also may have contributed to his periods of AWOL. a. During the applicant's era of service, commanders were to initiate separation action based on unfitness when Soldiers were involved in frequent acts of a discreditable nature. AR 635-212 required Soldiers separated for unfitness to receive an undesirable discharge under other than honorable conditions; however, separation authorities could give honorable or under honorable conditions characters of service to Soldiers who had been awarded a personal decoration, or in cases where the separation authority determined the Soldier's particular circumstances did not warrant an under other than honorable conditions character of service. b. Although the applicant claimed to have received a PTSD diagnosis, he did not submit documentary proof, and an ARBA psychologist was unable to find sufficient evidence to affirm a behavioral health condition contributed to the applicant's misconduct. 5. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all support documentation, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board concluded that relief was not warranted. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon the relatively short term of honorable service completed prior to a lengthy list of misconduct, to include some criminal in nature, the Board determined that there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. However, prior to closing the case, the Board did note the administrative notes below from the analyst of record and recommended those changes be made to more accurately depict the military service of the applicant. 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: 1. 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. 2. Prior to closing the case, however, the Board did note the administrative notes below from the analyst of record and recommended those changes be completed to more accurately reflect the military service of the applicant. X CHAIRPERSON 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): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of DD Forms 214. It stated the DD form 214 was the most vital document a separating Soldier would receive; as such, it was of paramount importance that the information be complete, accurate, and in accordance with authorized entries. a. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) was to list awards and decorations. b. Although not required at the time the applicant separated, a subsequent change in 1970 stipulated item 30 (Remarks) would reflect the dates of a Soldier's Vietnam service. 2. The applicant's DA Form 20 indicated the applicant arrived in Vietnam on 2 June 1967; his DD Form 214 reflects 12 months of foreign service in Vietnam (i.e. 2 June 1967 to 1 June 1968). The DA Form 20 also shows the award of the National Defense Service Medal. 3. AR 600-8-22 states: a. The National Defense Service Medal is awarded for honorable active service during the period 1 January 1961 through 14 August 1974. b. A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Counteroffensive-Phase III (1 June 1967 to 29 January 1968) * Tet Counteroffensive (30 January 1968 to 1 April 1968) * Counteroffensive- Phase IV (2 April 1968 to 30 June 1968) 4. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Orders (DAGO) Number 42, dated 1969, awarded the Meritorious Unit Citation to the 93rd Engineer Battalion for the period 1 February to 30 September 1968. b. DAGO Number 43, 1970, awarded the 93rd Engineer Battalion the Republic of Vietnam Civil Actions Honor Medal, First Class for the period 3 August 1967 to 9 February 1970. c. All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 5. As a result, amend his DD Form 214, ending 4 August 1969, as follows: a. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – delete the Vietnam Service Medal, and add the following awards: * National Defense Service Medal * Vietnam Service Medal with three bronze service stars * Meritorious Unit Citation * Republic of Vietnam Civil Actions Honor Medal, First Class * Republic of Vietnam Gallantry Cross with Palm Unit Citation b. Item 30 (Remarks) – add: "SERVICE IN VIETNAM – 2 June 1967 to 1 June 1968." REFERENCES: 1. AR 635-212, in effect at the time, set forth the basic authority for separating enlisted personnel for reasons of unfitness or unsuitability. Paragraph 6 (Applicability) stated an individual was subject to separation under the provisions of this regulation for unsuitability when they had a character and behavior disorder or displayed a lack of appropriate interest (apathy). Soldiers involved in frequent acts of a discreditable nature were separated for unfitness under this regulation. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, prescribed policies and procedures for enlisted administrative separations. Paragraph 1-9e (General Discharge) stated a general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was 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 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. 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 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. 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. 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//