IN THE CASE OF: BOARD DATE: 18 July 2023 DOCKET NUMBER: AR20220011535 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement (Medical Information) 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 AR19990022895 on 22 April 1999. 2. The applicant states he was hooked on drugs over in Vietnam and no one would help him or any of his fellow military members that came home. He also struggled with post-traumatic stress disorder (PTSD), drug addiction, and other issues due to the Vietnam War. that he endured discrimination and harassment from other higher-ranking individuals in the military. The trauma associated with being hooked on drugs in Vietnam affected his ability to gain stable employment and it also affected his family life. 3. The applicant was inducted into the Army of the United States on 5 July 1967. His military occupational specialty was 11B (Light Weapons Infantryman). 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 October 1967, for being absent without leave (AWOL) from 2 to 5 October 1967. 5. The applicant arrived in Vietnam on or about 3 December 1967 and he departed Vietnam on or about 5 October 1968. 6. Before a special court martial on 16 February 1970, the applicant was found guilty of one specification of AWOL from 4 December 1968 to 13 December 1969. The court sentenced him to confinement at hard labor for four months, forfeiture of $50.00 per month for six months, and reduction to private/E-1. 7. The applicant accepted NJP under Article 15 of the UCMJ on 25 April 1970, for AWOL from 19 to 20 April 1970. His punishment consisted of an oral reprimand. 8. The applicant was reported AWOL on 26 July 1970 and dropped from rolls as a deserter on 24 August 1970. He surrendered on 3 March 1974 and was returned to military control on 7 March 1974. 9. Court martial charges were preferred against the applicant on 7 March 1974 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 26 July 1970 and did remain so absent until on or about 4 March 1974. 10. The applicant requested a delay in all processing of court martial charges against him until the Commanding General, Fort Dix, NJ acted on his request for discharge in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10 , in lieu of trial by a court-martial.. 11. The applicant consulted with legal counsel on 11 March 1974 and was advised of the possible effects of an undesirable discharge and the rights available to him and the effects of a discharge UOTHC; that he might be deprived of many or all Army and Veterans Administration benefits. He voluntarily requested discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He elected not to submit a statement in his own behalf. 12. The applicant's immediate commander recommended approval of his request for discharge and issuance of an undesirable discharge. The applicant had been medically examined and was qualified for separation. There did not appear to be any reasonable grounds to believe that the applicant is or was at the time of his misconduct mentally defective, deranged, or abnormal. His chain of command recommended approval. 13. On 10 April 1974, the separation authority approved the applicant's request for discharge, and directed that he be reduced to the lowest enlisted grade and issued an DD Form 258A (Undesirable Discharge Certificate). 14. The applicant was discharged on 20 May 1974. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 10, with Separation Program Designator code 246 (for the good of the service - in lieu of trial by court martial), and Reenlistment Eligibility (RE) Code RE-3B. His service was characterized as UOTHC. He completed 1 year, 10 months, and 27 days of net active service this period. He had 1809 days of lost time. He was awarded or authorized the: * National Defense Service Medal * Combat Infantry Badge * Air Medal * Republic of Vietnam Campaign Medal * Purple Heart 15. 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. 16. On 21 March 1979, the Army Discharge Review Board (ADRB) denied the applicants request for upgrade of his discharge. 17. On 22 April 1999, the ABCMR determined the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice and denied his application for upgrade of his discharge. 18. 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. 19. MEDICAL REVIEW: a. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions discharge. He contends his misconduct was related to PTSD and Other Mental Health issues. 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 was inducted into the Regular Army on 5 July 1967. He served in Vietnam from 3 December 1967 to 5 October 1968; 2) He accepted NJP under Article 15 of the UCMJ, on 9 October 1967, for being AWOL from on or about 2 October 1967 5 October 1967; 3) Before a special court martial on 16 February 1970, the applicant was found guilty of AWOL from on or about 4 December 1968 and did remain so absent until on or about 13 December 1969; 4) The applicant accepted NJP under Article 15 of the UCMJ on 25 April 1970, for being AWOL from on or about 19 April 1970 until on or about 20 April 1970; 5) The applicant was AWOL on 26 July 1970 and dropped from rolls as a deserter on 24 August 1970. He surrendered on 3 March 1974 and was returned to military control on 7 March 1974; 6) Court martial charges were preferred against the applicant on 7 March 1974 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 26 July 1970 and did remain so absent until on or about 4 March 1974; 7) The applicant consulted with legal counsel on 11 March 1974, and voluntarily requested discharge under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service; 8) On 10 April 1974, the separation authority approved the applicant's request for discharge, and directed that he be reduced to the lowest enlisted grade and issued an DD Form 258A (Undesirable Discharge Certificate); 9) The applicant was discharged on 20 May 1974 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial, with an UOTHC characterization of service. c. VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No hardcopy military BH records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a service-connected disability. No hardcopy civilian BH records were provided for review. d. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions discharge. He contends his misconduct was related to PTSD and Other Mental Health issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and he provided no documentation supporting his claim of PTSD or Other Mental Health issues. In absence of documentation supporting the applicant’s contention of mitigating factors, there is insufficient evidence to support is contention or warrant an upgrade of his discharge characterization. It appears the applicant administrative discharge was proper and equitable. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to PTSD and Other Mental Health issues, and his contention is sufficient to warrant the Board’s consideration. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was related to PTSD and Other Mental Health issues. (2) Did the condition exist, or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions discharge. He contends his misconduct was related to PTSD and Other Mental Health issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and he provided no documentation supporting his claim of PTSD or Other Mental Health issues. In absence of documentation supporting the applicant’s contention of mitigating factors, there is insufficient evidence to support is contention or warrant an upgrade of his discharge characterization. It appears the applicant administrative discharge was proper and equitable. 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 request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The Board reviewed and was persuaded by the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of 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. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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 AR19990022895 on 22 April 1999. 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 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. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR), 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. 4. 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, 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 sexual assault or sexual harassment was unreported, or 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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) AR20220011535 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1