IN THE CASE OF: BOARD DATE: 27 February 2023 DOCKET NUMBER: AR20220007097 APPLICANT REQUESTS: Reconsideration of his previous requests for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim), two dated 18 April 2022, one dated 27 June 2011 (previously considered), and one dated 15 November 2022 * VA Form 21-10210 (Lay/Witness Statement), dated 14 April 2022 * DD Form 149, dated 27 June 2011 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 27 August 1969 * DD Form 214 (Report of Separation from Active Duty), for the period ending 13 September 1974 * previously considered Character Reference Letters (four) * VA Claims cover sheet with VA Form 21-4138 requesting an appeal of ABCMR Docket Number AR20110013718, dated 17 November 2011 (previously considered) * Army Review Boards Agency (ARBA), Congressional and Special Actions Letter, denying reconsideration, dated 21 December 2011 * ABCMR Dockets Number AR20110013718, boarded 8 November 2011, and AR20120015195, boarded 14 March 2013 * Applicant's Request for Discharge for the Good of the Service, dated 3 September 1974 * Ex-wife's Support Letter, dated 16 December 2021 * U.S. Army Absentee Returned to Military Control Letter with a date of return of 6 August 1974 * Fort Campbell, KY, Basic Training Pictures, 27 September 1968 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 Numbers AR20110013718 and AR20120015195 on 8 November 2011 and 14 March 2013, respectively. Wherein, the Board determined the applicant’s characterization of service was neither in error nor unjust and denied his request for relief. 2. Counsel states, in effect, on several VA Forms 21-4138: a. The applicant was sexually assaulted while serving in the Republic of Vietnam (RVN) and suffers from post-traumatic stress disorder (PTSD) due to his military sexual trauma (MST). He was in good standing before going absent without leave (AWOL). He did not want to return to the RVN and face more abuse and assault. He received an honorable discharge, reenlisted and was hoping to be moved to another unit away from the abuse, pain, and humiliation. But instead of moving him, he was granted leave only to return to the same unit. Before taking leave, he told his attackers that he would turn them in and was beaten up. The incident was investigated but nothing was done. While on leave he decided not to go back to a place where they wanted to kill him. b. He felt his only option was to take an UOTHC discharge for the good of the service. Paperwork states it was his own free will, he had not been subjected to any coercion, and he had been advised of the implications attached to his request. However, he was young and did not understand the long-term effects of his decision. He just wanted the pain and suffering to go away. But it never goes away and has caused many issues in his life. c. He contends the previous board only addressed the applicant's court-martial and never the investigation into his assault. Counsel continues to explain the applicant's experiences leading up to his separation, and contends the applicant was not mentally capable of understanding what he signed when he was discharged. Because he was using alcohol and self-medicating to cover up his mental condition. 3. The applicant states, in effect, on VA Form 21-10210: a. He was led to believe that no matter what he did, he would be court-martialed. He felt like he had to sign it and could not foresee future medical issues. His sexual assault did not seem to matter, as nothing was done about it. He did not want to return to the same unit where it occurred. He also thinks documents shows he had other options, not stressed, such as a "trial" [indicative of a court-martial trial]. He wants an upgrade so he can get VA Medical care for his Parkinson's, ischemic, bypass surgery, skin disorder, depression, anxiety, sleep disorders, hearing issues, etc. His previous VA claims have been denied because of his character of service. b. He further states, the letter included from his ex-wife explains how he was acting after being discharged, such as drinking and smoking to cope with his assault. He continues by describing how he was a senior carpenter, made rank quickly, and a criminal charge that occurred prior to joining the military. He wanted to stay in the service but did not want to go back to the same unit where he was assaulted. 4. The applicant's service record shows: a. On 26 July 1968, he enlisted in the Regular Army for a 3-year service obligation. After completing training, he was awarded military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist) and was assigned to the RVN on 30 July 1969. On 27 August 1969, he was honorably discharged for immediate reenlistment. The DD Form 214 he was issued shows his MOS as 51B (Senior Carpenter), his rank was Specialist Five (SP5) (temporary), he was credited with completing 1 year, 1 month, and 2 days of net active service this period, and he was awarded or authorized the National Defense Service Medal and Vietnam Service Medal. b. On 28 August 1969, he reenlisted for a 3-year service commitment in the rank/grade of private first class/E-3. c. On 3 September 1974, court-martial charges were preferred against the applicant 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 4 October 1969 through on or about 29 August 1974. d. On 3 September 1974, 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 his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge and elected to submit the following statement in his own behalf. I had civil charges prior to service. The charges were dropped (facing 3-years) if I joined the Army, after 1 month I was told the charges were only postponed and I would still have to serve time later. I went AWOL and was picked up later and convicted, I served 6 months at hard labor. They told me the Army would probably mail me a discharge they had no hold on me for the military, however. However, I have no desire to remain in the United States Army. Applicant Signed e. On 6 September 1974, the applicant’s chain of command recommended approval of his separation with an undesirable discharge. f. On 10 September 1974, the separation authority approved the applicant's request for discharge 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). g. On 13 September 1974, the applicant was discharged accordingly. His DD Form 214 confirms he was separated under the provisions of Army Regulation 635- 200, (Personnel Separations – Enlisted Personnel), Chapter 10. His service was characterized as UOTHC. He was credited with completing 1 month and 21 days of net active service this period, with 715 days of lost time. 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 8 November 2011 and 14 March 2013, the ABCMR considered the applicant's requests for upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that his was properly discharged, and denied his request. 7. The available record is void of and the applicant has not provided documentation to support his contention of an investigation into MST or a physical assault causing him to have PTSD during his period of service. 8. Counsel provides the following, as detailed above: * Two DD Forms 149, five VA Forms 21-4138, a VA Form 21-10210 and two DD Forms 214 * Four previously considered character reference letters, attesting to his character * ARBA, Congressional and Special Actions letter denying reconsideration * ABCMR Dockets Number AR20110013718 and AR20120015195 * Applicant's request for discharge for the good of the service * Ex-wife's support letter, showing they were married for 13 years with 6 pages of bullet point describing his post service behavior * U.S. Army Absentee Returned to Military Control letter nullifying his deserter status * Fort Campbell, KY Basic Training pictures with a highlighted picture of the person he contends assaulted him [highlights not visible] 9. 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. 10. Published guidance to the Service BCM/NR 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. 11. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 13 September 1974 discharge characterized as under other than honorable conditions. He states: “That his character of Service be changed - Veteran was assaulted in service. Filed for PTSD MST reason for him not wanting to return to Vietnam where he was Assaulted.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 28 August 1969 and was discharged on 13 September 1974 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (6 August 1974): Discharge for the Good of the Service. The DD 214 states the applicant had 1,058 days lost under Title 10 United States Code § 972 and 732 days lost to subsequent normal ETS. c. The request for a discharge upgrade was denied by the ABCMR on 14 March 2014 (AR20120015195). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. A Charge Sheet (DA Form 458) shows he was charged with absence without leave (AWOL) from 4 October 1969 thru 29 August 1974. e. On 3 September 1974, the applicant requested discharge for the good of the service under chapter 10 of AR 635-200. The applicant submitted a handwritten statement on his own behalf: "I had civil charges prior to service. The charges were dropped (facing 3 years) if I joined the Army. After 1 month I was told the charges were only postponed and I would serve time later. I went AWOL and was picked up later and convicted. I served 6 months at hard labor. They told me the Army would probably mail me a discharge. They had no hold on me for the military. However, I have no desire to remain in the United States Army." f. His discharge request was approved by the acting commander of the US Army Training Center Engineer and Fort Leonard Wood on 10 September 1974. g. No medical documentation was submitted with the application. JLV shows the applicant has been diagnosed with PTSD. Kurta Questions: A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: PTSD. Applicant contends MST. B. Did the condition exist or experience occur during military service? YES C. Does the condition or experience actually excuse or mitigate the discharge? YES: As the BH condition of PTSD and the BH experience of MST are both associated with avoidant behaviors, they fully mitigate his period of absence without leave. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on libera consideration when reviewing discharge upgrade requests, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was not warranted. Based upon the misconduct leading to the applicant’s separation and the lack fo corroborative evidence to show the applicant was sexually assaulted during his period of military service, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s characterization of service. 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, U.S. 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. 2. 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 regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 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. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 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) AR20220007097 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1