IN THE CASE OF: BOARD DATE: 3 August 2022 DOCKET NUMBER: AR20220004391 APPLICANT’S REQUEST: The applicant and counsel request, in effect: * an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable * award of the National Defense Service Medal and Vietnam Service Medal * any other appropriate relief APPLICANT AND COUNSEL SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit A - Recommendation for Discharge, dated 18 February 1976 * Exhibit B - Section VII - Current and Previous Assignments: Record of Assignments * Exhibit C – Applicant’s Sworn Statement * Exhibit D - Western Union Telefax, dated 26 October 1967 * Exhibit E - General Orders from 24th Evacuation Hospital, dated 26 October 1967 * Exhibit F - Report of Medical History, dated 17 February 1976 * Exhibit G - Separation Note, dated 17 February 1976 * Exhibit H - Letter from CB, dated 13 February 1977 * Exhibit I - Administrative Decision, dated 21 November 1977 * Exhibit J - DD Form 214 (Report of Separation from Active Duty), dated 2 March 1976 * Exhibit K - Antelope Valley Mental Health Center, Assessment by SC, ASW, dated 28 June 2018 * Exhibit L - Report of Injury, dated 26 October 1967 * Exhibit M - DA Form 3836, Notice of Return of U.S. Army Member from Unauthorized Absence, dated 5 February 1976 * Exhibit N - DD Form 215, Correction to DD Form 214, dated 31 March 1977 * Exhibit O - Request for Information, completion date 16 March 2009 * Exhibit P - Record of Proceeding Under Article 15, Uniform Code of Military Justice (UCMJ) dated 8 July 1967 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 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’s requested relief to be awarded or authorized the Vietnam Service Medal is supported by sufficient evidence; as a result, this portion of the requested relief will be addressed in the "ADMINISTRATIVE NOTE(S)" section and will not be considered by the Board or further addressed in record of proceedings. 3. The applicant and counsel state, in pertinent part: a. The applicant, a former infantry direct fire crewman who served his full tour of duty in Vietnam and was awarded a Purple Heart after an enemy rifle grenade caused significant bodily injury. The applicant was wrongfully and incorrectly discharged under other than honorable conditions for being Absent Without Leave (AWOL) and respectfully seeks assistance from the Board to correct this error. b. As explained further in the attached brief, he was not AWOL and, therefore, his discharge was an error or injustice that requires a correction that can only be provided by the Board. First, there is no evidence in the applicant’s record of any order directing him to report to specific location after his return from Vietnam. Second, even if an order was issued, he behaved reasonably when he did not report for duty because he reasonably believed his military service was over when he left Vietnam and returned to the United States. Further, the Army violated its own regulations when it failed to inform the applicant or his family that he was required to perform additional domestic service. In fact, the applicant was not contacted by the military until his arrest years after his return from the War. Finally, the applicant’s discharge must be reevaluated because, at the time he was discharged, he was suffering from untreated Post-Traumatic Stress Disorder (PTSD), which caused him to develop various substance abuse issues. c. The applicant and counsel further state: * 6 April 1967, the applicant, a teenager with an eighth-grade education, was drafted into the U.S. Army with a two-year commitment to serve his country in Vietnam * after completing basic training, the applicant arrived in Vietnam on 25 September 1967; he was wounded in action on 25 October 1967 * the applicant was awarded the Purple Heart on 26 October 1967 * despite the trauma he endured, the applicant returned to service in December 1967 and continued to serve the remainder of his tour in Vietnam * he completed his tour in Vietnam without incident and began his journey home on 1 September 1968 * on 2 September 1968, his record indicates that he went AWOL, just one day after he started Casual Duty and began his journey home from Vietnam * he was transferred on "Casual Duty," meaning that he did not have orders to a specific assignment * the applicant was sent home 30 days early for “compassion leave”; it was his understanding that the Army would contact him if they needed him * he was apprehended by civilian authorities on 29 January 1976 and the applicant agreed to an undesirable discharge in February 1976 so that he could return home and tend to family issues * he explained in his statement that, he did not understand he was required to report when he returned * when he was returned to the Army he could barely read and he was working with an 8th grade education; the applicant didn't understand what AWOL meant, and he didn't realize that he had rights * he was a functioning alcoholic, and so he signed off on the document d. For the foregoing reasons, the applicant asks the Board to upgrade his discharge to honorable and provide him with any other appropriate relief, including amending his DD Form 214 as necessary and issuing him an Honorable Discharge Certificate. He also seeks the award of two medals he earned through his honorable service in Vietnam, the National Defense Service Medal and Vietnam Service Medal. 4. On 6 April 1967, the applicant was inducted in the Army of the United States (AUS). He completed training requirements and was awarded his military occupational specialty. In connection with his induction into the AUS, the applicant acknowledged that, he had been inducted for 2 years’ active duty and informed of his active duty and United States Army Reserve obligation. He signed an Acknowledgement of Service Obligation (6-year acknowledgement). 5. On 12 July 1967, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being AWOL from on or about 3 to 6 July 1967. His punishment consisted of forfeiting $25 per month for 2 months and restriction for 35 days. He did not appeal. 6. His Personnel Qualification Record shows he served in the Republic of Vietnam from 25 September 1967 to 1 September 1968 and he was assigned to Headquarters and Headquarters Company, 1/27th Infantry, 25th Infantry Division, and 125th Signal Battalion. 7. The applicant was apprehended by civilian authorities on 30 January 1976 for being AWOL, and eventually returned to military control. 8. On 13 February 1976, the applicant was notified by his commander of his intent to initiate actions to separate him from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 15-6, for absence without leave. In pertinent part, the applicant was advised of his rights to consult with consulting counsel; to present his case before a board of officers, and to submit statements in his own behalf. a. Legal counsel advised the applicant of the basis for his contemplated separation and its effect and the rights available to him. The applicant waived consideration of his case and personal appearance before a board of officers. He elected not to submit a statement in his own behalf; however, his record contains a statement from the applicant stating, in pertinent part, his going AWOL was a misunderstanding of where to report at the time he returned from Vietnam. He wanted out of the Army because of his family and his job with Procter and Gamble. He felt he was a good citizen of the United States of America and he had no problems in civilian life during the eight (8) years that he was AWOL. b. On 17 February 1976, the applicant was medically cleared for separation and a Report of Mental Status Evaluation shows he was psychiatrically cleared for separation action deemed appropriate by his chain of command. c. On 18 February 1976, the applicant’s commander formally recommended him for separation action because of misconduct by reason of absence without leave or desertion, which continued for one year or more. In pertinent part, the recommendation for separation shows the applicant enlisted on 6 April 1967, and his term of enlistment was two (2) years. His period of absence was from on or about 2 September 1968 to 29 January 1976. d. On 19 February 1976, the applicant requested to be placed on excess leave and his chain of command approved the excess leave request. The chain of command also recommended approval of the separation action. e. On 1 March 1976, the Staff Judge Advocate (SJA) recommended approval of the separation action and issuance of an Undesirable Discharge Certificate. The SJA recommendation was based on a review of the applicant’s military personnel record, attached documents, and comments from the commanders. f. On 2 March 1976, the separation authority (Commanding General) approved the applicant’s discharge, directed he be furnished an Undesirable Discharge Certificate (DD Form 258A), and reduced to the lowest enlisted grade. 9. On 15 March 1976, the applicant was discharged from the Army under other than honorable conditions and issued an Undesirable Discharge Certificate. The DD Form 214 he was issued shows, in pertinent part: * he completed 5 months and 10 of net service this period * the applicant had 2708 days lost from 2 September 1968 to 29 January 1976 and 3 to 5 July 1967 * he was awarded the Purple Heart 10. On 31 March 1977, a DD Form 215 (Correction to DD Form 214) shows his DD Form 214 was corrected to show, in pertinent part: * the applicant completed 1 year, 6 months, and 9 days of net active service * he had 11 months and 7 days of foreign and/or sea service [Vietnam] 11. The applicant’s counsel provided an 11-page briefing with 16 exhibits and a copy of the applicant’s military record. The documents will be provided to the Board for review and consideration. 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. a. The applicant and counsel’s contentions were reviewed and considered; nevertheless, the evidence shows the applicant was inducted into the Army of the United States on 6 April 1967 and he acknowledged with his signature he had been inducted for 2 years’ active duty. The applicant further acknowledged he was informed of his active duty and United States Army Reserve service obligation. The evidence also shows NJP was imposed against the applicant for being AWOL from on or about 3 to 6 July 1967 prior to serving in the Republic of Vietnam. b. The applicant was apprehended by civilian authorities on 30 January 1976 for being AWOL for more than 1 year. He was transported to military authorities and recommended for an undesirable discharge based on misconduct. He acknowledged receipt of the separation action and the legal office reviewed the separation action and recommended approval. The applicant was cleared by a medical examination and mental status evaluation for separation by his chain of command. The separation authority approved the applicant’s discharge and directed he be furnished an Undesirable Discharge Certificate. To justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. c. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 at the time established policy and prescribed procedures for separating members for misconduct by reason of absence without leave or desertion. It stated an individual could be considered for discharge under this section when an administrative review determined there was substantial evidence to support a determination of desertion or absence without leave, the authorized absence was continuous for 1 year or longer, retention was undesirable, or a trial by court-martial was deemed inadvisable. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. d. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. The regulation provides that the National Defense Service Medal (NDSM) may be awarded for both active and reserve service. In pertinent part, it is awarded for honorable active service for any period between 1 January 1961 and 14 August 1974 (Vietnam). 13. 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. 14. MEDICAL REVIEW: ??? The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Other Than Honorable Conditions discharge was due to PTSD he developed during his time in service. a. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) and civilian medical documentation were also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records were provided for review. b. Review of the applicant’s military documentation indicates that he was inducted into the Regular Army on 06 Apr 1967. While on active duty, he was deployed overseas to Vietnam from 25 Sep 1967 - 01 Sep 1968. During his time in service, he was awarded the Purple Heart. His job position was Infantry Direct Fire Crewman. He received an Article 15 for being absent without leave (AWOL) from 03 Jul - 06 Jul 1967 while assigned to Company D, 4th Battalion, 3rd Training Brigade, Fort Polk, LA. A letter indicating Discharge by Reason of Absence Without Leave, dated 13 Feb 1976, noted the reason was for going AWOL from 02 Sep 1968 - 29 Jan 1976 while assigned to 384th Adjutant General Replacement Company, Fort Hood, TX. A Report of Mental Status Evaluation (17 Feb 1976) identified normal behavior and thought content along with level mood. It was determined he met retention standards. He received an Under Other Than Honorable Conditions discharge on 15 Mar 1976 with DD-214 Authority and Reason, Chap. 15, Sec II, AR 635-200, SPD JKP. c. The supporting documentation included applicant’s letter indicating, “The next time they went out I had to go with them. We were led by a Sargent…We were on our way to set up an ambush, when we were attacked on our way to the site. It was a total surprise. I was hit by an enemy rifle grenade right on my chest. The impact knocked me off my feet and on my back. The grenade went off after it deflected off of me. One month to the day after my arrival in Vietnam, on October 25, 1967, the Vietcong shot me in my chest. I took grenade fragments throughout my entire body, including my legs, chest, and face. I was immediately medically evacuated. I was awake through the grenade hitting me, the explosion, and my evacuation. I did not pass out until they put me under for surgery… After I recovered, I was reassigned to the 125th Signal Corps Battalion of the 25th. I was also with my new unit when we were attacked by the North Vietnamese, in the early Tet Offensive of January 1968. The 125th Signal Corps had to supply and rotate soldiers. At one point, one of my duties included picking up dead soldiers. Before Vietnam I didn't know anything about drinking or smoking dope or marijuana, but in Vietnam you drink every day. Drug and alcohol use were universal where I was stationed. When I left I was an alcoholic and was drunk every day.” d. The supporting documentation also included a behavioral health assessment (28 Jun 2018) which noted, “Client is currently homeless… Client reports losing concentration with little interest in information from others that may be important, ‘because the things of today don't interest me anymore.’ Client reports anxious distress, ‘losing patience, moving fast, worrying, stressing about getting off the streets.’ The social worker identified “trauma or exposure to trauma…Client was hit close range by a grenade while in the Vietnam War.” e. The VA electronic medical record, Joint Legacy Viewer (JLV) did not indicate any service-connected disability(s). There were eight Outpatient Encounter notes (non- clinical) which included his incarceration (Mar 2008), homeless status (June 2017 - Feb 2018) and transitioning from a residence to Section-8 housing (Feb 2022. There was no available data on the Problem List. f. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, trauma- and stressor-related symptoms. As there is an association between trauma- and stressor-related symptoms and avoidant behavior, there is a nexus between applicant’s condition and his lengthy AWOL episode from his unit. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and following his deployment to Vietnam. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop trauma- and stressor-related symptoms in a combat-military environment. g. Kurta Questions (1) The applicant did have a condition that may excuse or mitigate the discharge (i.e. trauma- and stressor-related symptoms). (2) The trauma- and stressor-related symptoms did exist and the traumatic events occurred during military service. (3) Finally, the trauma- and stressor-related symptoms actually do excuse or mitigate the discharge – it mitigates for his period of going AWOL from his unit. A discharge upgrade is recommended. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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 advising official finding sufficient evidence the applicant has a mitigating Behavioral Health condition, trauma- and stressor-related symptoms. As indicated by the advising official, there is an association between trauma- and stressor- related symptoms and avoidant behavior, there is a nexus between applicant’s condition and his lengthy AWOL episode from his unit. The Board determined as shown by a chronological review of his military career there are indication a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and following his deployment to Vietnam. Based on evidence provided, the Board determined relief is warranted with an upgrade to honorable. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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 amending his DD Form 214 to show a characterization of 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): A review of the applicant’s DD Form 214, DD Form 215, Personnel Qualification Records, Army Regulations, Department of the Army (DA) Pamphlets, and DA General Orders is sufficient to substantiate correction of the DD Form 214 for the period ending 15 March 1976 by adding all awards he is authorized. The applicant’s DD Form 214 should be corrected by adding the awards shown below. * Republic of Vietnam Campaign Medal * Vietnam Service Medal with four (4) bronze service stars * Meritorious Unit Commendation * Republic of Vietnam Cross of Gallantry with Palm Unit Citation * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation 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 Army Board for Correction of Military Records (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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 15 at the time established policy and prescribed procedures for separating members for misconduct by reason of absence without leave or desertion. It stated an individual could be considered for discharge under this section when an administrative review determined there was substantial evidence to support a determination of desertion or absence without leave, the authorized absence was continuous for 1 year or longer, retention was undesirable, or a trial by court-martial was deemed inadvisable. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. In pertinent part, the regulation also states: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 4. 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. 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; 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 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 based on 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. 7. Army Regulation 635-8 (Separation Processing and Documents) states to List all federally recognized awards and decorations for all periods of service. Do not use abbreviations. Do not enter foreign or State level awards on DD Form 214. Army Regulation 600-8-22 (Military Awards) gives the order of precedence for awards and decorations. Only decorations, medals, and ribbons are listed. Certificates of achievement, letters of appreciation, and similar documents are not listed. 8. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004391 1 ABCMR Record of Proceedings (cont) AR20220004391 1