IN THE CASE OF: BOARD DATE: 26 October 2022 DOCKET NUMBER: AR20220002848 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-authored Letter * Letter from the Office of the Chief, Army Reserve, Office of Programs and Liaison, dated 13 July 1992 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 states: a. He was in the field in Vietnam in December of 1969 when a chopper came in and he was ordered to board it for the rear. He had no idea why. When he arrived at base, he was told he was going home on Emergency leave. He was flown to Fort Lewis, WA, and sent home. His wife claimed she wanted to commit suicide. He was granted a 30 day leave and when he reported back to Fort Lewis, he applied for compassionate reassignment, which was rejected. He then went absent without leave (AWOL) and remained that way for over a year. He turned himself in at Fort Lewis and was placed in the stockade. An attorney told him that the colonel was willing to let him go home to his wife if he accepted an undesirable discharge. He was told that doing so he can be with his wife in her time of need and that it was not a dishonorable discharge. b. In 1986 his wife told him she had not been truthful about her mental state, that she simply wanted him home. They divorced as a result. In 1992, she told him that she had written the Army to get his discharge upgraded. He respectfully requests an upgrade of his discharge before he dies. He has lived with this on his mind for over 50 years. His DD Form 293 notes mental health as a contributing and mitigating factor in the circumstances that resulted in his separation. 3. On 9 June 1969, the applicant was inducted into the U.S. Army. He was awarded military occupational specialty 11C (Indirect Fire Infantryman). 4. The applicant served in the Republic of Vietnam from on or about 12 November 1969 to on or about 9 February 1970. 5. Court-martial charges were preferred against the applicant on 3 March 1972, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 15 February 1970 to on or about 18 January 1972. 6. The applicant consulted with legal counsel on 9 March 1972 and 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 UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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. b. He elected to submit a statement in his own behalf, stating he returned from Vietnam on emergency leave because his wife had a severe nervous breakdown and tried to take her own life. He returned to his base and pleaded to have his denial of reassignment changed. On his next visit home, his wife told him she was pregnant, so he decided to stay. His wife had lost her job, so he took a job as a truck driver. 7. On 13 March 1972, the applicant's commander recommended approval of the applicant's request for discharge, and recommended he receive an undesirable discharge. 8. The separation authority approved the applicant's request for discharge on 15 March 1972. He directed his reduction to the lowest enlisted grade and the issuance of DD Form 258A (Undesirable Discharge). 9. The applicant was discharged on 15 March 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 8 months and 2 days of net active service this period, with 765 days of lost time. He was awarded or authorized the: * National Defense Service Medal * Expert Qualification Badge (M-14) * Sharpshooter Qualification Badge (M-16) * Vietnam Service Medal * Vietnam Campaign Medal with 60 Device * Combat Infantryman Badge. 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 provides a letter from the Office of the Chief, Army Reserve, Office of Programs and Liaison, dated 13 July 1992. This letter is a response to the applicant’s former wife, regarding her letter to President Bush concerning the applicant’s discharge. 12. 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. 13. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting an upgrade of his Under Other Than Honorable Conditions discharge contending mental health issues he developed due to his wife’s attempted suicide led to his decision to absent himself without leave. The Agency BH Advisor was asked by the ABCMR to review his case. Documentation reviewed includes the applicant’s completed DD 293 and supporting documents as well as the ABCMR Record of Proceedings. The military electronic medical record (AHLTA) was not reviewed as it was not in use during applicant’s period of service. The VA electronic medical record (JLV) was reviewed and was found to be void of information or files regarding the applicant. The applicant did not submit any hard copy military medical records or civilian medical documentation for review. a. The specific facts and circumstances of the applicant’s case can be found in the ROP. Pertinent to this advisory are the following: 1) The applicant entered the Army on 9 June 1969; 2) He served in Vietnam from 12 Nov 1969 to 9 Feb 1970; 3) He was charged with being AWOL from 15 Feb 1970 to 18 Jan 1972; 4) He was discharged on 15 March 1972 IAW AR 635-200, Chapter 10. b. Based on the information currently available, it is the opinion of the Agency BH Advisor that there is insufficient medical information to make a decision regarding medical mitigation. However, as the applicant contends mental health issues contributed to his misconduct, his assertion alone is sufficient to warrant consideration under Kurta. c. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant contends mental health issues were a contributing and mitigating factor in his decision to absent himself without leave. His records, however, are void of evidence to support his contention and he did not provide supporting documentation. (2) Did the condition exist or experience occur during military service? (a) Yes. The applicant contends the experience existed while on active duty; however, the records are void of evidence to support his contention and he did not provide supporting documentation. (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partial. The applicant asserts that mental health issues contributed to his misconduct and, though there is no specific documentation supporting his assertion, his assertion alone is sufficient for the board’s consideration as per the Liberal Consideration guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 the medical advisory the Board concurred with the advising official finding insufficient medical information to make a decision regarding medical mitigation. However, as the applicant contends mental health issues contributed to his misconduct, his assertion alone is sufficient to warrant consideration under Kurta. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant no provided post-service achievements or character letters of support to weigh 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. Therefore, the Board denied 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 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, USC, 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. 3. 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. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs, on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. 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. 6. 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) AR20220002848 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1