IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220010858 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Civilian Medical Documents (17 Pages) 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 AR2002072379 on 19 September 2002. 2. The applicant states he was having issues from post-traumatic stress disorder (PTSD) and flashbacks from combat before he got to Germany. He requested discharge for the good of the service. 3. On his DD Form 149, the applicant notes PTSD as a contributing and mitigating factor in the circumstances related to his separation. 4. On 9 February 1968, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of his training, and award of military occupational specialty (MOS) 67B (01/U6 Airplane Repairman), he reported for duty in the Republic of Vietnam (RVN) on 1 August 1968. On 12 December 1968, his MOS was changed to 76W (Petroleum Storage Specialist). 5. He was promoted to his highest grade held Specialist Four/E-4. 6. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * 4 January 1969, for being absent without leave (AWOL) on 1 January 1969 and for failing to go to his appointed place of duty at the time prescribed on 2 January 1969; his punishment included reduction to E-1 and restriction for 60 days * 9 January 1969, for being AWOL from on or about 7 January 1969 to 8 January 1969, and for willfully disobeying a superior officer by breaking restriction, on or about 7 January 1969; his punishment included forfeiture of $25 per month for two months * 6 July 1969, for willfully disobeying a lawful order from his superior noncommissioned officer, on or about 4 July 1969; his punishment included reduction to E-2 and forfeiture of $68 for two months 7. On 27 July 1969, he was transferred from the RVN to Fort Ord, CA, and arrived on 16 September 1969. 8. On 6 November 1969, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for disobeying a lawful order from his commanding officer on or about 1 November 1969. 9. On 19 December 1969, he was transferred to Germany and arrived on 8 February 1970. 10. On 9 June 1970, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for four specifications of being absent from his place of duty on or about 16 May 1970, 26 May 1970, 27 May 1970, and 28 May 1970. His punishment included forfeiture of $29 for one month and restriction for 14 days. 11. On 28 July 1970, the applicant underwent a psychiatric evaluation. The examining physician noted the following: Diagnosis: Immature personality, chronic, moderate, manifested by passive- aggressive behavior, manipulation, strange dreams and ineffective feelings. Pertinent History: is a 20-year-old married, Caucasian male with two years seven months active duty. 's father died in a mining accident five months before was born. had two stepfathers. One, the first, was an alcoholic and his mother divorced him. The second was a schoolteacher and this marriage resulted in a separation. is the youngest of nine siblings. feels somewhat deprived in his life with three fathers, he never knew his natural father, and his mother working. spent one year in RVN. returned from RVN on an emergency leave in April 1969 to marry a 16-year-old girl 8 1/2 months pregnant. 's wife is anemic and has difficulty managing affairs especially with a 14-month-old son, financial problems, and husband away from home. admits to taking drugs frequently, including mescaline and LSD. When first referred to MHCS in February 1970, was having strange dreams involving sensations of falling. These dreams have since ceased. Mental Status: is of average to good looks; appearance was a little sloppy. was oriented and was of average intelligence. There is no indication of psychotic disorder. was friendly and cooperative but quite manipulative. Therapy would be ineffective when considering the magnitude of problems plus the problems posed for this man by the military environment. Findings and conclusions: Recommend discharge UP Army Regulation 635-212 with psychotherapy at MHCS until separation. Recommendation: Cleared psychiatrically for any action deemed necessary by Command. 12. On 30 July 1970, the applicant accepted NJP, under the provisions of Article 15 of the UCMJ, for four specifications failing to go to his appointed place of duty at the time prescribed on or about 9 July 1970, 10 July 1970, twice on 16 July 1970, and 28 May 1970; and three specifications of failing to go to his appointed place of duty on or about 22, 23 and 24 July 1970. His punishment included reduction to private/E-2, seven days extra duty and 14 days restriction. 13. On 17 August 1970, the applicant underwent a separation examination. The applicant stated he was in good health. The examining physician qualified him for separation. 14. On 20 August 1970, a medical officer's statement was completed on the applicant showing he met medical retention standards; he was and mentally responsible; able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings. 15. The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. Court-martial charges were preferred against him; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 16. On 21 September 1970, 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 court-martial [first page only]. In his request for discharge, he 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. 17. On 11 October 1970, the applicant was discharged under the provisions of Army Regulation 635-200, with Separation Program Number 246 (discharge for the good of the service). His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing 2 years, 8 months, and 1 day of net active service. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Overseas Bars (2), and a marksmanship badge. 18. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he 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. 19. On 19 September 2002, the ABCMR considered the applicants petition for upgrade of his discharge. The Board determined after careful consideration of his military records and all other available evidence, that he was properly discharged, and denied his request. 20. The applicant provides 17 pages of civilian medical records for consideration. 21. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 22. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. He contends he had mental health condition that mitigated his misconduct, PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 9 February 1968; 2) The applicant served in the Republic of Vietnam (RVN) beginning in 1 August 1968; 3) The applicant accepted non-judicial punishment (NJP) multiple times for being AWOL, not following orders, and failing to go to his appointed place of duty from 4 Jan 1969-July 1970; 4) The available record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing. Court-martial charges were preferred against him. However, the relevant DD Form 458 (Charge Sheet) is not available for review; 5) On 11 October 1970, the applicant was discharged, with Separation Program Number 246 (discharge for the good of the service). He was discharged in the lowest enlisted grade, and his service was characterized as UOTHC; 6) On 19 September 2002, the ABCMR considered and denied the applicants petition for upgrade of his discharge. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. Th VA’s Joint Legacy Viewer (JLV) and civilian medical records were also evaluated. d. The applicant asserts he was experiencing PTSD as a result of his deployment to Vietnam, which mitigated his misconduct. The applicant underwent a psychiatric evaluation on 28 July 1970. He was diagnosed with an immature personality, and he admitted to using illegal drugs and was also engaged to an underage woman, who was pregnant with his child. He was cleared from a psychiatric perspective for admirative action. A review of JLV provided evidence the applicant has been diagnosed with a personality disorder and PTSD. The applicant receives no service connect disability. He also provided civilian medical documentation from his primary medical provider that he has diagnosed and treated for PTSD, depression, and a personality disorder. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence to support the applicant had condition or experience that partially mitigated his misconduct. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing symptoms of PTSD that contributed to his misconduct. There is sufficient evidence the applicant has been diagnosed with PTSD as result of his deployment to Vietnam. 2. Did the condition exist or experience occur during military service? Yes, the applicant contends his symptoms of PTSD occurred while on active service. 3. Does the condition or experience actually excuse or mitigate the discharge? Partially, there is sufficient evidence the applicant was diagnosed with PTSD as a result of his deployment to Vietnam. There is a nexus between PTSD and the applicant’s failure to follow orders, not being at his appointed place, and his repeated times he was found AWOL. However, the specific information concerning the specific facts and circumstances surrounding the applicant’s discharge processing were not available for review. In the absence of this information, it must be assumed it was correctly completed, and the applicant’s discharge was properly conducted. However, the applicant contends he was experiencing a mental health condition that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: After reviewing the application and all supporting documents, 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 The Board noted the applicant made the request to be discharged for the good of the service. The Board agreed with the advisory official in that, in the absence of this information, it must be assumed it was correctly completed, and the applicant’s discharge was properly conducted. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official finding PTSD only partially mitigated the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 AR2002072379 on 19 September 2002. 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 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 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 3. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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, Boards 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) AR20220010858 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1