IN THE CASE OF: 

		BOARD DATE:  12 August 2022

		DOCKET NUMBER: AR20210014601


APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his 
under other than honorable conditions discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Personal Statement
*	Department of Veterans Affairs Summary of Benefits Letter

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:

*	AR20070009274, 27 November 2007
*	AR20080003783, 24 July 2008

2.  The applicant states he enlisted in the Army in May 1967. Since Vietnam was not 
classified as a war but rather a police action, he was denied mental assistance. After he 
returned to Philadelphia, he fell of the deep end, and suffered from self-medication 
(street drugs). He and others returning from Vietnam were abandoned; they were not 
bad people. Since his discharge, he has failed to sustain an honest living with the 
current under other than honorable conditions discharge. He signed to serve his 
country, but after Vietnam, his country failed him. 

	a.  Today, he is still a proud of overcoming the obstacles that faced him then, in an 
unfavorable conflict. He was told he was a victim of battle fatigue; this was long before 
post-traumatic stress disorder (PTSD).  Because of his character of service, he did not 
receive the benefits that comes with military service. He received the cold shoulder and 
a run-around because of the character of service. 

	b.  He is still struggling with accountability. He still trying hard to fit. Even those 
aiding him agree that he needs mental help to really achieve balance in what is left of 
his life. Unfortunately, he failed to be given the “Stimulus Check.” He feels abandoned 
and his eyes are wet with remorse how he failed in life.  

3.  Review of the applicant’s service records shows: 

	a.  He enlisted in the Regular Army on 16 May 1967, and he held military 
occupational specialty 11D (Armored Reconnaissance Specialist). 

	b.  On 18 September 1967, while still in training, he accepted nonjudicial punishment 
under Article 15 for failing to go at the time prescribed to his appointed place of duty. 

	c.  He served in Vietnam from 21 October 1967 to 12 December 1969. He was 
wounded on 2 February 1968 and was awarded the Purple Heart. He also had lost time 
due to being absent without leave (AWOL). 

	d.  On 14 December 1967, in Vietnam, he accepted nonjudicial punishment under 
Article 15 for being found asleep while on duty as a sentinel. 

	e.  On 10 January 1968, he was reported in an AWOL status. He returned to military 
control on 30 March 1968.  

	f.  On 28 April 1968, he was again reported in an AWOL status. He was 
apprehended and returned to military control on 4 June 1968. He was placed in pre-trial 
confinement. 

	g.  On 2 September 1968, in Vietnam, he was convicted by a general court-martial of 
one specification of being absent without leave (AWOL) from 28 April 1968 until he was 
apprehended on 4 June 1968. The court sentenced him to reduction to the lowest 
enlisted grade, forfeiture of all pay and allowances, confinement at hard labor for 12 
months, and a bad conduct discharge. 

	h.  General Court-Martial Number 3, issued by Headquarters, 9th Infantry Division, 
Vietnam, on 17 January 1969, shows the convening authority approved a reduced 
sentence of reduction to the lowest enlisted grade, forfeiture of all pay and allowances, 
confinement at hard labor for 9 months, and a bad conduct discharge, and except for 
the bad conduct discharge ordered it executed. The record of trial was forwarded to the 
appellate authority for appellate review. 

	i.  General Court-Martial Order Number 370, issued by the U.S. Disciplinary 
Barracks, Fort Leavenworth, KS on 17 April 1969, states, having served the period of 
confinement adjudged on 2 September 1968 by general court-martial, as promulgated 
in General Court-Martial Order Number 3, Headquarters, 9th Infantry Division, 17 
January 1969, is restored to duty pending completion of appellate review.  

	j.  On 27 May 1969, the applicant was reported in an AWOL status and on 29 June 
1969, he was dropped from the rolls as a deserter. He ultimately returned to military 
control on 6 January 1970.

	k.  On 10 January 1970, court-martial charges were preferred against him. His DD 
Form 458 (Charge Sheet) shows he was charged with one specification of AWOL from 
27 May 1969 to 6 January 1970. 

	l.  On 16 January 1970, General Court-Martial Order Number 5, issued by 
Headquarters, 5th Infantry Division, Fort Carson, CO indicated that in the general court-
martial case of [Applicant] 5th Battalion, 60th Infantry, 9th Infantry Division, (presently 
dropped from rolls of Medical Holding Company, Fitzsimons General Hospital, Denver, 
CO), pursuant to Article 66 (CM 419814), only so much of the findings of guilty of the 
Specification and the Charge as finds that [Applicant] did, at the place and from the unit 
alleged, absent him­self without proper authority from 28 April 1968 to 30 April 1968, in 
violation of Article 86, Uniform Code of Military Justice, are affirmed but the sentence, 
as promulgated in corrected General Court-Martial Order Number 3, Headquarters, 9th 
Infantry Division, dated 17 January 1969, has been set aside. All rights, privileges, and 
property of which the accused has been deprived by virtue of the sentence so set aside 
will be restored. 

	m.  On 22 January 1970, the applicant consulted with legal counsel. He was advised 
of the basis for the contemplated trial by court-martial for an offense punishable by a 
bad conduct discharge or a dishonorable discharge, the maximum permissible 
punishment authorized under the Uniform Code of Military Justice, the possible effects 
of a request for discharge, and of the procedures and rights that were available to him.  
Following consultation with legal counsel, he requested discharge under the provisions 
of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of 
the service - in lieu of trial by court-martial. In his request for discharge, he indicated:

*	he was making this request of his own free will and had not been subjected to 
any coercion by any person 
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge
*	he acknowledged he understood that if the discharge request was approved, 
he could be deprived of many or all Army benefits, that he could be ineligible 
for many or all benefits administered by the Veterans Administration (VA), 
and that he could be deprived of his rights and benefits as a veteran under 
both Federal and State law
*	he stated "under no circumstances do I desire further rehabilitation for I have 
no desire to perform further military service"
*	he did not elect to submit a statement in his own behalf 

	n.  On 30 January 1970, the separation authority approved the applicant's request 
for discharge under the provisions of AR 635-200, chapter 10, for the good of the 
service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 
and issued an under other than honorable conditions discharge. The applicant was 
accordingly discharged on 6 February 1970. 

	o. The applicant's DD Form 214 (Armed Forces of the United States Report of 
Transfer or Discharge) shows he was discharged in accordance with chapter 10 (in lieu 
of trial by court-martial) of AR 635-200 with an under other than honorable conditions 
characterization of service. He completed 2 years and 29 days of active service, of 
which 232 days was lost time. 

	p.  On 28 September 1978, the Army Discharge Review Board (ADRB) reviewed his 
discharge but found it proper and equitable. The ADRB denied him an upgrade of his 
discharge. 

	q.  On 27 November 2007, the Board also denied his request for an upgrade of his 
discharge after it determined: 

		(1)  The evidence of record shows that the applicant had a pattern of misconduct. 
He went AWOL on three occasions and received one general court-martial and two 
Article 15s for his misconduct. He accumulated a total of 232 days of lost time due to 
AWOL and confinement.

		(2)  The evidence shows that the applicant voluntarily requested discharge, for 
the good of the service, under the provisions of AR 635-200, chapter 10, and waived his 
rights. The document approving his discharge by the appropriate authorities is 
unavailable for review. He was separated on temporary records.

		(3)  The applicant has provided insufficient evidence to show that his discharge 
was unjust. He also has not provided evidence sufficient to mitigate the character of his 
discharge. 

	r.  On 24 July 2008, the Board denied his request a second time after it determined 
the following: 

		(1)  Contrary to the applicant's contention, his bad conduct discharge was not 
overturned. The convening authority merely opted to not execute that portion of the 
applicant's sentence as pertained to the punitive discharge.

		(2)  The applicant's combat involvement, and the wounds he incurred in combat, 
are noted and were probably the reason the convening authority opted to accept the 
applicant's request for discharge in lieu of court-martial instead of executing the 
applicant's bad conduct discharge or convening another court-martial to try him for 
additional offenses.

		(3)  While the applicant's Vietnam service, and the wounds he incurred in 
combat, are certainly mitigating, they do not outweigh the applicant's record of 
continuous misconduct. Being wounded does not give any Soldier the right to violate 
military and civilian laws and regulations. Additionally, the Army has never had a 
program by which discharges are automatically upgraded because of service in 
Vietnam.

4.  By regulation (AR 635-200), Chapter 10: A member who has committed an offense 
or offenses for which the authorized punishment includes a punitive discharge may, 
submit a request for discharge for the good of the service in lieu of trial by court-martial. 
The request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt. A discharge under other than honorable 
conditions is normally considered appropriate.

5.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

6.  MEDICAL REVIEW:

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 Solutions 
(HAIMS) were not in use at the time of his service. The applicant asserts PTSD and 
other mental health were issues related to his upgrade request. No psychiatric records 
were provided for review. His hard copy military medical records were not available for 
review. A review of his service record indicates his first failure to report occurred before 
his service in Vietnam. He had multiple periods of AWOL while in Vietnam. His last 
AWOL subsequent to service in Vietnam ended when he was arrested and 
subsequently convicted by civilian authorities for larceny of an automobile. A review of 
JLV indicates the applicant has not been evaluated nor treated in the VA system. The 
applicant did submit a claim to the VA. On 19 May 2017, the VA confirmed that his 
service was dishonorable for VA purposes and he was not entitled to health care in the 
VA system. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance 
Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to 
support a behavioral health diagnosis at the time of his discharge. There is no 
documented psychiatric condition to consider with respect to mitigation of the 
misconduct that led to his discharge. 

    a.  Kurta Questions
(1)	Did the applicant have a condition or experience that may excuse or mitigate the 
discharge? 
(a)	No
(2)	Did the condition exist or experience occur during military service?  \
(a)	No
(3)	Does the condition experience actually excuse or mitigate the discharge? 
(a)	N/A
(4)	Does the condition or experience outweigh the discharge? 
(a)	N/A

BOARD DISCUSSION:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records, a medical review 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.  The Board considered the medical records and the review and conclusions 
of the reviewing official.  The Board concurred with the medical reviewer finding 
insufficient evidence of in-service mitigating factors to overcome the misconduct.  The 
applicant provided no evidence of post-service achievements or letters of reference in 
support of a clemency determination.  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.

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.

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 to amend the decision of the ABCMR set forth in Dockets Number 
AR20070009274 on 27 November 2007, and AR20080003783, 24 July 2008.


		  
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 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a 
member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may submit a request for discharge for the 
good of the service in lieu of trial by court-martial.  The request may be submitted at any 
time after charges have been preferred and must include the individual's admission of 
guilt.  Although an honorable or general discharge is authorized, a discharge under 
other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states that 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 that 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.  

2.  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 under other than honorable conditions, 
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.  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; TBI; 
sexual assault; sexual harassment.  Boards were directed 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 that misconduct which led 
to the discharge.

4.  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.

5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) be provided with a copy of any correspondence and communications (including 
summaries of verbal communications) to or from the Agency with anyone outside the 
Agency that directly pertains to or has material effect on the applicant's case, except as 
authorized by statute. ARBA medical advisory opinions and reviews are authored by 
ARBA civilian and military medical and behavioral health professionals and are 
therefore internal agency work product. Accordingly, ARBA does not routinely provide 
copies of ARBA Medical Office recommendations, opinions (including advisory 
opinions), and reviews to Army Board for Correction of Military Records applicants 
(and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210014601


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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