IN THE CASE OF: BOARD DATE: 24 September 2020 DOCKET NUMBER: AR20190004716 APPLICANT REQUESTS: in effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130006554 on 12 December 2013. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge by reason of physical disability, or, in the alternative, an under honorable conditions (general) discharge. 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 25 July 2018 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 14 April 2012 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130006554 on 12 December 2013. 2. As a new argument the applicant states he developed post-traumatic stress disorder (PTSD) while in advanced individual training (AIT). He provides the same VA Form 21-4138 from his previous request, wherein he stated: a. He was severely beaten and tortured while on recon maneuvers at Fort Polk. He and another Soldier were lost in the woods for hours; when darkness came, they saw a truck come out of the woods and thought they were going back to the barracks. Instead, they were taken to a camp in the woods. Once there, the other Soldier was snatched off the truck and beaten. b. The applicant jumped off the truck to help but more people came out of the tent and beat them even more. They tied him up, put a sand bag on his head, and sat him in a chair inside the tent. They asked him questions that he didn’t know. Then someone started soaking water in his nose and mouth and rubbing it over and over. He thought they were going to kill him; he tried to resist but couldn’t do anything. He went crazy and laid there out of his mind for an unknown period of time. He was then taken back outside and tied to the ground on his back. They put a light and a dripping bucket over his head and tied rawhide across his lips, under his nose. As the water dripped, it tighten on his face. Somehow he managed to free himself, jump a fence, and wandered the woods for hours. c. He will never be the same and this has affected him his whole life. This really happened but he only wishes they would have let the enemy in Vietnam do it to him. He did not dodge his service; he was a good Soldier who served honorably. 3. The applicant was inducted into the Army of the United States on 13 February 1969. He attended basic training at Fort Campbell, KY and AIT at Fort Polk, LA. His record provides no evidence in support of his contentions, vis-à-vis a PTSD-triggering event that occurred during that period. 4. Court-martial charges were preferred against the applicant on 1 July 1970, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with the following specifications: * being absent without leave (AWOL) from the U.S. Army Overseas Replacement Station, Fort Lewis, WA [Enroute to Vietnam], from on or about 11 July 1969 through on or about 23 September 1969 * being AWOL from U.S. Army Garrison, Fort Campbell, KY, from on or about 8 October 1969 through on or about 18 January 1970 * being AWOL from U.S. Army Garrison, Fort Campbell, KY, from on or about 27 January 1970 through on or about 1 June 1970 5. The applicant consulted with legal counsel on 18 June 1970. a. He 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 bad conduct discharge or dishonorable discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit a statement. 6. The applicant’s commander recommended approval of his discharge request on 29 June 1970, in lieu of trial by court-martial, and recommended he receive an undesirable discharge. 7. The applicant’s intermediate commander recommended approval of his discharge request on 7 July 1970, in lieu of trial by court-martial, and recommended he receive an undesirable discharge. The commander's recommendation included the following statements: a. [The applicant] entered the service on 13 February 1969 to serve for two years. Since that time he has accrued 328 days bad time of which 296 days were AWOL time. His records indicate that he is pending Special Court-Martial charges for three specifications of AWOL. b. In view of [the applicant’s] AWOL record, I feel that little or no gain will result from retaining him on active duty. For the good of the service, I recommend that [the applicant’s] request for discharge under the provisions of Chapter 10, Army Regulation 635-200 be accepted and that an Undesirable Discharge Certificate be issued. 8. The separation authority approved the applicant's request for discharge on 9 July 1970, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 9. The applicant was discharged on 20 July 1970, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows his service was characterized as UOTHC. He was credited with completing seven months and 10 days of net active service, and had 301 days of lost time. 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UOTHC discharge. After careful consideration, the ADRB denied his request on 30 October 1979. 12. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 12 December 2013. 13. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. MEDICAL REVIEW: The ARBA Medical Advisor reviewed the supporting documents and the applicant’s records in the Joint Legacy Viewer (JLV) and made the following findings and recommendations. Records are void of a psychiatric condition. The applicant did not submit medical records for review. Accordingly, documentation is insufficient to make a determination. Due to the period of service, active duty electronic medical records are void. Hard copy medical records are unavailable. The applicant is not service connected. In 2013 and 2015, the applicant requested housing assistance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense 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, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the ARBA Medical Advisor regarding there being insufficient documentation to determine if his misconduct may have been mitigated by PTSD. 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 :XXX :XXX :XXX 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 2. 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 [Hagel Memorandum], 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. 3. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if 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. 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. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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) AR20190004716 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004716 6 ABCMR Record of Proceedings (cont) AR20190004716 5