IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210015253 APPLICANT REQUESTS: The applicant and counsel, in effect, request to upgrade the applicant’s previously upgraded under honorable conditions discharge to fully honorable, and a personal appearance before the Board. APPLICANT AND COUNSEL’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Appointment of Individual as Claimant’s Representative * Veterans Advocacy Clinic Student Attorney’s letter to the Board * Brief in Support of Application * Exhibit A – DD Form 214 (Report of Separation from Active Duty) and DD Form 215 (Correction to DD Form 214) * Exhibit B – Army Medical Records * Exhibit C – VA Medical Record (14 April 2014) * Exhibit D – VA Medical Record (12 September 2011) * Exhibit E – Vet Center Medical Records * Exhibit F – VA Medical Record (4 October 2010) * Exhibit G – VA Medical Record (September 2010) * Exhibit H – Acting Under Secretary of Defense for Personnel and Readiness A.M. Kurta, Memorandum for Secretaries of the Military Department (25 August 2017) * Exhibit I – Secretary of Defense Chuck Hagel, Memorandum for Secretaries of the Military Departments (3 September 2014) * Exhibit J – Bronze Star Medal and Army Commendation Medal FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (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 and counsel state: a. The applicant states he received a General Under Honorable Conditions Discharge during his time in service for going absent without leave (AWOL) soon after he returned from Vietnam. He was later diagnosed with post-traumatic stress disorder (PTSD) which was not a diagnosis back at the time of his discharge. He currently receives 100 percent (%) PTSD disability from the VA. This condition started during his time in service. Because of his PTSD, he went AWOL during his service as a coping mechanism. b. Counsel states, in pertinent part, the applicant respectfully requests the Board for Correction of Military Records for the Army (hereinafter "BCMR") to grant liberal consideration for a discharge upgrade because the behavior that led to his discharge was a direct result of the serious yet untreated mental illness that he suffered while in- service. c. Per the 2014 Memorandum for Secretaries of the Military Departments issued by Secretary of Defense Chuck Hagel the board should "liberally consider” any PTSD diagnosis and should give “special consideration” to the VA determinations related to PTSD. In 2014, Secretary of Defense Hagel mandated that the Board give liberal consideration to discharge upgrade applicants with PTSD. Further, in 2017, then Acting Under Secretary of Defense A.M. Kurta, issued clarifying guidance extending such liberal consideration to all requests based in whole or in part to all mental health conditions. Under Secretary Kurta’s memo’s guidance includes four (4) questions that the BCMR ought to consider when evaluating upgrade applications. The four questions are as following: (1) Did the veteran have a condition or experience that may excuse or mitigate the discharge; (2) Did that condition exist or experience occur during military service; (3) Does that condition or experience actually excuse or mitigate the discharge; and (4) Does that condition or experience outweigh the discharge? d. The applicant respectfully contends that his well-documented, yet untreated serious in-service mental illness mitigated his in-service misconduct and outweighed his discharge. Moreover, the applicant was not provided with the rehabilitative programming and counseling, and there is evidence of injustice relating to the veteran’s capability to serve. To correct past error and in the interest of justice, the applicant’s General Under Honorable Conditions discharge warrants an upgrade to an Honorable discharge. e. The applicant served in Vietnam and is a decorated veteran. While in Vietnam, the applicant encountered numerous traumatic events, which still bother him to this day. His service involved horrific events. The applicant received a Bronze Star, Vietnam Campaign Medal, Army Commendation Medal with Valor, Vietnam Unit Citation, Vietnam Service Medal, and Marksmanship Badge (Rifle). After his exceptional service in Vietnam and upon returning home, the applicant never received an actual welcome home from Vietnam. However, due to the stressors from his experience in Vietnam, the applicant went AWOL as a result of his undiagnosed PTSD. He consequently received an Article 15 (non-judicial punishment (NJP)). These AWOL dates are the reason for his General Discharge Under Honorable Conditions in 1969 and are attributed to the applicant’s suffering and dealing with his chronic PTSD. The applicant regrets going AWOL during his service. He was unaware he was suffering from PTSD at the time, or he would have sought help. Counsel further states: * the applicant’s request for a discharge upgrade should be granted because his severe in-service mental illness caused, mitigates, and outweigh his in- service misconduct * the applicant did and continues to suffer a condition or experience that excuses and mitigates his discharge * the applicant’s condition or experience that excuses and mitigates his discharge existed and was experienced during service * his symptoms involuntarily and seriously impacted his in-service conduct * the applicant’s discharge upgrade should be granted in the interest of justice f. In conclusion, the applicant desires one thing before he passes onto the next life: an Honorable Discharge. He bravely and voluntarily served in the U.S. Army, and wishes to be recognized not for his misconduct, but for service in the Vietnam War. For the foregoing reasons, the applicant respectfully requests this honorable Board to upgrade his discharge to Honorable 3. On 1 May 1967, the applicant enlisted in the Regular Army for a period of 3 years. 4. On 8 May 1967, his Enlisted Qualification Record (DA Form 20) shows he was assigned to Fort Bragg, NC, for Basic Combat Training (BCT). 5. On 14 June 1967, while attending BCT, the applicant received non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of restriction to the company area for 14 days. He did not appeal. 6. On 2 July 1967, his Enlisted Qualification Record shows he was assigned to Fort Sill, OK, for advanced individual training (AIT). While attending AIT the applicant went AWOL on 2 separate occasions. 7. On 31 August 1967, the applicant was arraigned, tried, and convicted by a Special Court-Martial. Consistent with his pleas, he was found guilty of being AWOL from on or about 30 July 1967 to 10 August 1967 and 13 to 18 August 1967. He was sentenced to confinement at hard labor for 3 months and forfeiture of $30.00 per month for 3 months. His sentence was approved and ordered executed on 1 September 1967. 8. On 1 November 1967, the unexecuted portion of the sentence to confinement at hard labor for 3 months was suspended for 3 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence was remitted without further notice. 9. On or about 15 January 1968, the applicant’s Enlisted Qualification Record shows he was assigned to the Republic of Vietnam. 10. On 24 October 1969, the applicant was arraigned, tried, and convicted by a Special Court-Martial. Consistent with his pleas, he was found guilty of being AWOL from on or about 3 to 17 March 1969; 11 to 14 April 1969; and 18 April 1969 to 10 September 1969. He was sentenced to be confined at hard labor for 5 months and to be reduced to the grade of private (E-1). (One previous conviction considered.) His sentence was approved and ordered executed on 29 October 1969. 11. On 29 October 1969, a Report of Psychiatric Evaluation shows the applicant was examined at Mental Hygiene Consultation Service. The military psychiatrist cleared the applicant for any administrative action deemed appropriate by the chain of command. The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right. The applicant had the mental capacity to understand and participate in board proceedings. The psychiatrist found no evidence of underlying, previously recognized, medically disqualifying emotional illness. Future discipline and/or rehabilitative processes were an administrative decision. On the same date, a Report of Medical evaluation shows the applicant met the retention standards prescribed in Chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness). He was medically cleared for separation action on 4 November 1969. 12. On 15 November 1969, the applicant was advised by legal counsel of the basis for his contemplated separation under the provisions of AR 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness, its effects and the rights available to him. He waived consideration of his case before a board of officers; waived his personal appearance before a board of officers. He elected not to submit any statements in his own behalf and waived representation by civilian counsel, military counsel or his own appointed counsel. a. The applicant was also advised that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He acknowledged that, he understood, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. b. On 17 November 1969, the applicant's commanding officer recommended he be eliminated from the service under the provisions of AR 635-212 for unfitness, based on his 5 periods of AWOL; 2 periods of confinement; being dropped from the rolls as a deserter on 2 occasions; and 2 convictions by court-martial. c. The commander stated upon the applicant’s arrival at the organization he was counseled by Chief Warrant Officer (CWO) on 29 March 1969 in an attempt to rehabilitate him. On 18 April 1969, the applicant departed AWOL. Upon his return he was counseled again by CWO and again counseled on 16 October 1969 by CWO . His military supervisors agreed that further rehabilitation would be futile. The commander requested rehabilitation requirements under the provisions of paragraph 7b(2), AR 635- 212 be waived. d. On 17 November 1969, the Commander in the applicant's next chain of command recommended that, notwithstanding the applicant's character of service and awards from his Vietnam service, he be eliminated from the service and issued an undesirable discharge certificate. In pertinent part, the commander stated, on 18 April 1969, the applicant went AWOL, and on 24 September 1969 after his return to the unit he was counseled and the applicant requested a discharge. At that time the applicant was confined. On 16 October 1969, the applicant was again counseled and still requested a discharge. The next higher-level commander Colonel recommended approval of the separation action with an Undesirable Discharge Certificate. e. On 25 November 1969, the General Court-Martial Convening Authority (Major General ) approved the applicant’s discharge from the Army under the provisions of paragraph 5b, AR 635-212, because of unfitness. Under the provisions of paragraph 7c(2), AR 635-212, a waiver was granted for requirement of paragraph 7b(2), AR 635- 212, by the General Court-Martial Convening Authority. He also directed the applicant be furnished an Undesirable Discharge Certificate. 13. On 1 December 1969, the applicant was discharged accordingly. The DD Form 214 he signed for shows he was discharged under the provisions of AR 635- 212 for unfitness. His character of service was listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. He completed 1 year, 8 months, and 4 days of net service this period with “334” days of lost time due to AWOL and confinement. 14. On 11 April 1975, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. The Board notes, the applicant stated, in a self-written letter, he had an excellent record. His record stateside was no good. “If they can give draft dodgers and deserters who deserted to keep from going to Vietnam amnesty, and a chance for an honorable discharge, I deserve one to.” The applicant did not mention he was suffering from mental illness. 15. On 12 November 1975, in the formal presentation (personal appearance) of his case before the Army Board for Correction of Military Records (ABCMR), the applicant testified, in pertinent part, that he deserved an upgrade of his discharge because draft dodgers, and deserters who left the country to keep from fighting were allowed to come back and get an honorable discharge or a general discharge; that when he returned from Vietnam he had family problems; that his wife was planning on running off (sic) with another man; that he had no excuses for being a poor soldier; that he knew, if he persisted in his bad conduct he would end up with a bad discharge; that Mr. , the applicant's father testified generally, before the Board, that the applicant did have the problem of a runaway wife; that he tried to persuade the applicant to report back from being AWOL; that the applicant was a little scared that his wife was not going to be faithful to him; and that the applicant did not really realize the consequences of an undesirable discharge. 16. On 12 November 1975, the ABCMR, in pertinent part: a. Concluded: “That although the Board does not condone applicant's misconduct, consideration should be given to the testimony before the Board by the applicant and witness; and that his unauthorized AWOL upon his return from Vietnam appears to be associated with his marital problems that he was experiencing at the time. That the evidence of record and the testimony before the Board, by the applicant, raises a reasonable doubt as to the applicant's ability to properly weigh the effects of his waiver before a board of officers, even after being properly advised by legal counsel, since it appears, he perhaps was not fully aware of the impact of such a decision.” b. Recommended: “That all of the Department of the Army records of [the applicant] be corrected to show that he was separated with a Certificate of General Discharge from the Army of the United States on 1 December 1969. That the Department of the Army issue to [the applicant] a Certificate of General Discharge from the Army of the United States dated 1 December 1969, in lieu of the discharge under other than honorable conditions issued him on the same date.” 17. On 26 April 1976, the applicant was reissued a DD Form 214 that shows his character of service listed as “under honorable conditions” and type of certificate issued as a “DD Form 257A” (General Discharge Certificate). His previous DD Form 214 that showed his character of service as “under conditions other than honorable” and issuing him an Undesirable Discharge Certificate was voided. 18. In support of his case, the applicant and counsel provided more than 235 documents listed above under the applicant and counsel’s supporting documents considered by the board. The documents will be provided to the Board and Army Review Boards Agency’s medical staff for review and consideration. 19. The applicant and counsel’s contentions were reviewed and considered; nevertheless, the evidence shows, prior to serving in Vietnam, the applicant received non-judicial punishment for failing to be at his appointed place of duty and he was convicted by a special court-martial for being AWOL on 2 separate occasions. Furthermore, the applicant testified before the ABCMR he went AWOL based on personal and marital issues at home. Consistent with the applicant’s testimony, his father testified confirming the applicant was having personal and marital issues at home. Furthermore, the evidence shows the applicant was counseled by his chain of command on multiple occasions and he requested to be discharged. The rehabilitative requirements were waived by the General Court-Martial Convening Authority (Major General). Additionally, the applicant’s record shows his discharge was previously upgraded by the ABCMR from an Undesirable Discharge to a General Discharge. 20. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. In pertinent part, the regulation stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. The General Court-Martial Convening Authority may waive the requirements of counseling and rehabilitation. 21. The Secretary of Defense published Supplemental, Clarifying and Clemency Guidance directing 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 with a characterization less than honorable 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; to include guidance that: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of less than honorable. b. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. BCM/NRs are not courts, nor are they investigative agencies. To assist the BCM/NRs in the review of records and to ensure fidelity of review protocol. The guidance is in intended to ease the application process for veterans who are seeking redress and assist the Boards in reaching fair and consistent results in these difficult cases. The guidance is not intended to interfere with or impede the Boards' statutory independence to correct errors or remove injustices through the correction of military records. 23. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 25. 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) was not in use at the time of his service. His hardcopy medical records were not available for review. A review of his service record indicates he completed a medical examination on 4 Nov 1969. He was found to meet retention standards. A review of JLV indicates he has a service-connected disability rating for PTSD effective 27 Jun 2010. His PTSD rating was increased to 100% effective 18 Apr 2014. 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 diagnosis at the time of his discharge. He met retention standards at the time of his discharge. Under liberal guidance, PTSD is considered a mitigating factor for 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) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes (4) Does the condition or experience outweigh the discharge? (a) Yes BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding there there is documentation to support a behavioral health diagnosis at the time of his discharge. The applicant met retention standards at the time of his discharge. Under liberal guidance, PTSD is considered a mitigating factor for the misconduct that led to his discharge. Based on the preponderance of evidence, the Board granted relief with an upgrade of honorable. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as 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): Not Applicable REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. In pertinent part, the regulation stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. The General Court-Martial Convening Authority may waive the requirements of counseling and rehabilitation. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. In pertinent part, the regulation 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. 3. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, the regulation states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) 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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 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 (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. 6. 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. a. 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. b. 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// ABCMR Record of Proceedings (cont) AR20210015253 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1