IN THE CASE OF: BOARD DATE: 1 March 2021 DOCKET NUMBER: AR20200001350 APPLICANT REQUESTS: an upgrade of his character of service from under conditions other than honorable to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA), Decision Review Officer Decision, dated 30 May 2019 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, on 17 April 2019, the VA found that his post-traumatic stress disorder (PTSD), associated with his Vietnam service, caused him to go absent without leave (AWOL). Therefore, no willful and consistent misconduct was found that would constitute a bar to [VA] benefits. 3. The applicant enlisted in the Regular Army (RA) on 15 November 1968. The highest rank/pay grade he held was specialist four (SP4/E-4), temporary. 4. His DA Form 20 (Enlisted Qualification Record shows he served in Vietnam from 23 June 1969 to 12 July 1970, and he was assigned to the following units: * 23rd Adjutant General Administrative Replacement Detachment, as a student at the Americal Combat Center, from 25 June 1969 to 2 July 1969 * Headquarters and Headquarters Company, 4th Battalion, 31st Infantry Regiment, 96th Infantry Brigade, as a General Vehicle Repairman, from 3 July 1969 to 7 July 1970 5. The applicant, while serving in Vietnam, was honorably discharged for immediate reenlistment in the Regular Army on 24 November 1969; he reenlisted on 25 November 1969. 6. The applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 27 January 1970 for being absent without leave (AWOL) from his unit in Vietnam, from 31 December 1969 to 20 January 1970. 7. The applicant's record shows he had the following periods of lost time from – * 1 December 1969 to 19 January 1970, AWOL * 13 April 1971 to 7 May 1971, AWOL * 4 November 1971 to 2 December 1971, AWOL * 3 December 1971 to 2 February 1972, Dropped from the Rolls 8. His record is void of the complete facts and circumstances of his discharge. However, the following documents are filed in the applicant’s record. a. A commander’s statement, dated 17 February 1972, wherein he summarized his interview with the applicant. The commander stated the applicant fully understood, and was well adjusted to the seriousness of an undesirable discharge. The applicant wanted no part of the Army, and had a poor attitude toward the military, especially toward continued service. Rehabilitation was impossible. b. A Report of Medical Examination, showing the applicant underwent a separation physical on 18 February 1972, where he indicated his health was “excellent.” c. Special Orders Number 062, issued by Headquarters, 4th Infantry Division (Mechanized), Fort Carson, Colorado, dated 2 March 1972. These orders released the applicant from active duty, effective 3 March 1972, for the good of the service, with an undesirable discharge. d. A Statement of Medical Condition, dated 3 March 1972, shows the applicant indicated that there had been no change in his medical condition, to the best of his knowledge, since his separation physical. 9. On 3 March 1972, the applicant was discharged in accordance with Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) with a Separation Program Number (SPN) of "246," for the good of the service. His service was characterized as under condition other than honorable. He completed 2 years, 11 months, and 11 days of total service, with 134 days of lost time. 10. The VA decision documents provided by the applicant show he was granted a 70 percent disability evaluation for PTSD. The VA stated that a statutory bar to benefits was not found, in that the applicant was not AWOL from service for a period of 180 consecutive days. Neither was a pattern of willful or persistent conduct found, in that he presented reasonable argument for his periods of AWOL and returned willingly to his unit. 11. Army Regulation 635-5-1 (Separation Program Designators) provided the SPN code 246 stands for a discharged under the provisions of paragraph 10-1 or Army Regulation 635-200 (Discharge of the Good of the Service). Discharges for the good of service are voluntary, in lieu of court martial. 12. The Board should consider the applicant's overall record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. 13. Based on the applicant's contention(s) the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. A review of his service record indicates he completed a separation physical on 18 Feb 1972. He met retention standards IAW AR 40-501. A review of JLV indicates he has a service connected disability rating of 100% with 70% for PTSD. 2. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition during his military service. He met retention standards at the time of his discharge. PTSD is a mitigating factor for the misconduct that led to his discharge. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was / was not warranted. 2. The Board carefully considered the applicants 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, the frequency and nature of his misconduct, and the reason for his separation. Given the applicant’s total days of AWOL during war time operations, the short period of time in service and insufficient evidence of error, injustice or inequity. 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 Board determined that the applicant’s discharge characterization of under other than honorable conditions was proper and equitable. 2. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5-1 (Separation Program Designators) provided the SPN code 246 stands for a discharged under the provisions of paragraph 10-1 or Army Regulation 635-200 (Discharge of the Good of the Service). 3. Army Regulation (AR) 635-200, Chapter 10 (Discharge for the Good of the Service), in effect at the time, set forth the basic authority for the separation of enlisted personnel under this chapter. a. Paragraph 10-1 stated an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service in lieu of trial. An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the service. b. Paragraph 10-2 stated, commanders will insure that there is no element of coercion in submitting a request for discharge for the good of the service. The member will be given a reasonable time (not less than 48 hours) to consult with counsel and to consider the wisdom of submitting such a request for discharge. If he elects to submit the request, the member will personally sign the written request, certifying that he understands that he may receive a discharge under other than honorable conditions and that he understands the adverse nature of such a discharge and the possible consequences thereof. The member's counsel shall sign as a witness, indicating whether he is qualified under Article 27(b) (1) of the Uniform Code of Military Justice, if he is not a member of The Judge Advocate General's Corps. If the member refuses all counsel, his request for discharge must explicitly state that fact. c. Paragraph 10-5 stated that commanders exercising general courts-martial jurisdiction are authorized to approve requests for discharge for the good of the service and to order the discharge of individuals or to disapprove such requests. d. Paragraph 10-6 stated that an undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if warranted. The reason and authority for discharge (DD Form 214) will be-"For the good of the service, SPN 246." e. 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. f. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 4. Title 38, USC, section 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001350 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1