ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20190001263 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. As a new request, he wants the combat medals he received for his contributions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 215 (Correction to DD Form 214) * Clemency Letter * Medical documents 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 Number AR2000039581 on 13 July 2000. 2. The applicant states, in part, his request is based on the merits of his service and in the interest of justice. He is worthy of an honorable discharge due to the hostile events he witnessed, experienced, and confronted during the Vietnam War. To the best of his knowledge, his service in Vietnam was honest, faithful, meritorious, and beneficial to the United States in the time of war. An honorable decision would in order. 3. The applicant served in Vietnam from on or about 21 September 1971 to on or about 20 September 1972. 4. While in Vietnam the applicant served with the following units: * A Battery, 1st Battalion, 39th Artillery, from 30 September 1971 to 4 December 1971 * Howitzer Battery, 2nd Squadron, 11th Armored Calvary Regiment from 5 December 1971 to 19 March 1972 5. The applicant received non-judicial punishment on the following occasions: * 21 February 1972, for being absent from his place of duty * 30 May 1972, for being absent from his appointed place of duty * 15 August 1972, for failing to go at the prescribed time to his appointed place of duty * 19 September 1972, for leaving his appointed place of duty on two separate occasions 6. Special Court-Martial Order Number 23, dated 13 December 1972, shows the applicant pled guilty and was found guilty of being absent from his unit without proper authority on two separate occasions. He was sentenced to hard labor without confinement for 30 days and forfeiture of $175.00 per month for 1 month. 7. On 29 June 1973, the applicant was charged with being absent from his unit from on or about 21 November 1972 to on or about 26 June 1973. 8. On 6 July 1973, after consulting with legal counsel the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf, but declined to do so. 9. On 27 July 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate. On the same day, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He had completed 1 year, 7 months and 22 days of creditable active service and 243 days of lost time. He was awarded or authorized the following: * National Defense Service Medal (NDSM) * Republic of Vietnam (RVN) Campaign Medal with Device (1960) * Vietnam Service Medal (VSM) * Marksman Marksmanship Qualification Badge with Rifle Bar 10. On 27 February 1976, the applicant was informed he had been awarded a clemency discharge pursuit to Presidential Proclamation 4313 of 16 September 1974. He was informed he could apply to the Army Discharge Review Board (ADRB) for review and possible change of discharge. 11. The applicant record is void of evidence showing he applied to the ADRB for review of his discharge. 12. On 24 October 2019, the ABCMR obtained an advisory opinion from a Medical Advisor with Army Review Boards Agency (ARBA), who states, in part, there is documentation to support the existence of a behavioral health condition at the time of discharge. The available records indicate the applicant met retention standards with respect to behavioral health diagnosis. PTSD is a mitigating factor for the misconduct that led to the applicant's discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. On 31 October 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment 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 had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). 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. 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the charges against him, his request for discharge and the reason for his separation. The Board considered the clemency discharge and the review and conclusions of the medical advising official. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Considering the available documentation, the Board found sufficient evidence of in-service mitigation for the applicant’s misconduct and that liberal consideration should be applied. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be corrected. 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 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 relief. As a result, in addition to the corrections stated in the Administrative Note(s) that follow, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD form 214 for the period of service ending 27 July 1973 to reflect in item 13a. (Character of Service) – “Under honorable conditions (General)” 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 an discharge upgrade 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): The applicant's DD Form 214 should be corrected to the following: * VSM with 3 bronze service stars * RVN Gallantry Cross with Palm Unit Citation (2nd Award) REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment 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 had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). 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. 2. The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 3. Public Law 95-126 was enacted in October 1978. This legislation: a. Denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. b. Required the Service Departments to establish historically-consistent uniform standards for discharge reviews. c. Required the Service Departments to reconsider all discharges previously upgraded under the DoD SDRP using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 4. 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. 5. 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. 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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. 7. Army Regulation 600-8-22 (Military Awards) states a bronze service star is worn on the VSM for each credited campaign listed in appendix B. His service in Vietnam coincided with three campaigns: * Consolidation I (1 July 1971 to 30 November 1971) * Consolidation II (1 December 1971 to 29 March 1972) * Vietnam CEASE-FIRE (30 March 1972 to 28 January 1973) 8. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. The pamphlet shows: a. 39th Artillery, 1st Battalion was cited for award of the RVN Gallantry Cross with Palm Unit Citation for the period 1 March to 9 October 1971 by Department of the Army (DAGO) 6, dated 1974. b. 2nd Squadron, 11th Armored Cavalry Regiment was cited for award of the RVN Gallantry Cross with Palm Unit Citation by DAGO 8, 1974. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190001263 6 1