IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20210017376 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge, and personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Photocopy of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 24 April 1972 * Privacy Release Form * Congressional Liaison Letters (3) * Department of Veterans Affairs (VA) Response Letter, with a Standard Form (SF) 180 (Request Pertaining to Military Records), and a copy of his available service and VA treatment records 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 AR20170016594 on 15 August 2019. Wherein, the Board determined the applicant’s characterization of service was neither in error or unjust and denied his request for relief. 2. As a new argument, the applicant states he was told he would be able to change his discharge, he just never requested it. On his DD Form 149, the applicant notes post- traumatic stress disorder (PTSD), and other mental health issues (OMHI) are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 3. In the processing of this case, the Army Review Boards Agency (ARBA) Case Management Division (CMD) requested official copies of the applicant's service records from the National Archives and Records Administration (NARA). His records were checked out and not available. Thus, the applicant’s complete military records are not available for review. This case was prepared and considered using his previous cases, and the documents he provided. 4. The applicant's service record shows: a. On 28 February 1969, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of his training, he was assigned to the Republic of Vietnam (RVN) on 8 September 1969. b. On 29 March 1970, the applicant was honorably discharged for immediate reenlistment in the Regular Army. The DD Form 214 he was issued for this period shows his grade was Specialist Four and he was credited with completing 1 year, 1 month, and 3 days of net service this period. He was awarded or authorized the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with 1960 Device. c. On 31 October 1970, the applicant departed the RVN and reported to his next duty station on 2 December 1970. d. His DA Form 20 (Enlisted Qualification Record), shows he had the following lost time reported: * Absent Without Leave (AWOL) from on or about 6 January 1971 to 20 March 1971 * AWOL from on or about 28 April 1971 to 13 June 1971 * AWOL from on or about 7 July 1971 to 20 August 1971 * AWOL from on or about 21 August 1971 to 26 August 1971 * Confined from on or about 1 September 1971 to 26 September 1971 e. His DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Conviction) shows he was found guilty by special court-martial on 27 September 1971, of being AWOL from on or about 7 July 1971 to on or about 21 August 1971. His sentence included confinement at hard labor for 75 days, forfeiture of pay for six months, and reduction to Private/E-1. The sentence was approved on 6 October 1971. He was confined from 27 September 1971 until 22 November 1971. f. His DA Form 20, shows he was reported as AWOL on the following occasions: * from on or about 13 January 1972 to 10 February 1972 * from on or about 11 February 1972 to 20 March 1972 g. Court-martial charges were preferred against the applicant; however, the relevant DD Form 458 (Charge Sheet) is not available for review. h. The applicant underwent a separation medical examination on 24 March 1972. An SF 89 (Report of Medical History) shows he was in good health but complained of dizziness or fainting spells and broken bones, but no problems since AWOL. The examining physician nor the applicant elaborated on his complaints further and he was qualified for separation. i. On 11 April 1972, after consulting with 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, he acknowledged no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He elected not to submit a statement in his own behalf. j. On 14 April 1972, the separation authority approved the applicant's request for separation, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He further directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). k. On 24 April 1972, the applicant was discharged. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His service was characterized as UOTHC and he was reduced to the lowest enlisted grade. He was credited with completing 1 year, 2 months, and 3 days of net active service this period. He was awarded or authorized the Army Commendation Medal (1st Oak Leaf Cluster) and a marksmanship badge. 5. 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. 6. On 19 January 1994 and 18 July 2006, the ABCMR considered the applicant’s petition for upgrade of his discharge. After careful consideration, the Board determined his characterization of service was neither in error or unjust. Accordingly, his requests for relief were denied. 7. The applicant provides his available service and VA treatment records in support of his request. 8. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 9. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records, and/or submitted documents in support of the petition. 10. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Although the applicant marked PTSD and other mental health issues on the application, he did not discuss a behavioral health condition or the possibility of related mitigation. All available documentation is void of behavioral health symptoms, conditions, or treatment. While liberal consideration was applied, documentation is insufficient to make a determination. Accordingly, there is no medical mitigation at this time. a. The applicant was discharged on 24 April 1972 under AR 635-200, Chapter 10, In Lieu of Trial by Court Martial, with an Under Other than Honorable characterization. The court martial charges are void. However, it is noted the applicant was AWOL from 13 January to 10 February 1972 and 11 February to 20 March 1972 prior to the Court Martial. Additionally, the applicant had four prior AWOLs with a Special Court Martial in September 1971; AWOLs included 06 January to 20 March 1971, 18 April to 13 June 1971, 07 July to 20 August 1971, and 21 August to 26 August 1971. The applicant served in Vietnam from 08 September 1969 to 31 October 1970. The applicant is requesting an upgrade. Although not specifically addressed, on the ARBA application the applicant marked PTSD and other mental health issues. b. In 1994 and 2006, the applicant applied to the ABCMR requesting an upgrade. The Board determined his discharge was proper and equitable, denying relief. c. Due to the period of service, electronic medical records are void. The electronic packet contained a February 1969 physical void of behavioral health symptoms, conditions, or treatment and listing a S1; no psychiatric limitations. A March 1972 physical was void of behavioral health symptoms, conditions, or treatment and listing a S1; no psychiatric limitations. The packet contained medical notations for a hand injury. d. The applicant is not service connected. In September 1992, the applicant was seen for medication management. The provider diagnosed Alcohol Dependence. In follow up, the applicant reported nightmares, avoidance of crowds, and startle reflex related to combat. The provider continued seeing the applicant through May 1993. While the provider noted possible PTSD and secondary Depression, a behavioral health diagnosis was not made “since no chart is available.” e. The applicant submitted post-service medical records from November 1981 to February 1982 related to a wrist splint and orthopedics referral. f. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? (a) YES. Based solely on the applicant’s marking of PTSD and other mental health issues on his application. (2) Did the condition exist or experience occur during military service? (a) UNKNOWN. While the applicant marked PTSD and other mental health issues on his application, he does not directly assert they existed in-service. Moreover, documentation is void of any service-related behavioral health symptoms, conditions, or treatment. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) UNKNOWN. While the applicant marked PTSD and other mental health issues on his application, he does not directly assert they existed in-service. Moreover, documentation is void of any service-related behavioral health symptoms, conditions, or treatment. (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s contentions, military record, regulatory guidance and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of his misconduct, the reason for separation and whether to apply clemency. The Board considered the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct and weigh in favor of a clemency determination. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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 Docket Number AR20170016594 on 15 August 2019. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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. c. Chapter 10 provided that a member who had committed 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 UOTHC discharge was normally considered appropriate. 3. 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. 4. 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 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. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military 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. 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, 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. 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) AR20210017376 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1