IN THE CASE OF: BOARD DATE: 19 July 2023 DOCKET NUMBER: AR20220012088 APPLICANT REQUESTS: In effect, a reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 Dockets Number AR2002070743 on 20 June 2002, and AR2004099942 on 6 May 2004, respectively. 2. As a new contention the applicant states in effect: He received a letter on 15 April 2013 stating he was granted a discharge upgrade to honorable. He was issued a DD Form 215 (Correction to DD Form 214) and should be issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 1 November 1969. 3. On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) and Other Mental Health issues as being related to his request. 4. On 5 November 1968, the applicant was inducted into the Army of the United States, for a 2-year service obligation. Upon completion of his initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 5. His DA Form 20 (Enlisted Qualification Record) shows he was reported as absent without leave (AWOL) on 1 May 1969 and returned to military control on 5 May 1969. 6. He was assigned to Vietnam and arrived on 9 May 1969. On 6 June 1969, he was wounded in action by a fragment on a landing zone (LZ), when the LZ was attacked by enemy rockets and mortars. His right hand was treated, and he was returned to duty. Subsequently he was awarded the Purple Heart and the Bronze Star Medal with valor device for heroism on 6 June 1969. Special Orders 181, Headquarters, 1st Air Cavalry Division, dated 30 June 1969, awarded him the Combat Infantryman Badge. 7. On 25 September 1969, 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 two specifications of being AWOL from on or about 17 July until 29 August 1969, and from on or about 17 September until 22 September 1969. Additional charge sheets show he was charged with being disrespectful in language towards his superior noncommissioned officer on or about 24 September 1969 and disobeying a lawful command on or about 29 September 1969. 8. On 16 October 1969, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. He indicated in his request that he understood that he could be discharged UOTHC and furnished an Undesirable Discharge, that he might be deprived of many or all Army benefits, that he might be ineligible for many, or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 9. Subsequently the applicant's chain of command recommended approval of his discharge request and the issuance of an UOTHC discharge. 10. On 27 October 1969, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade with the issuance of an Undesirable Discharge Certificate. The applicant returned from Vietnam on or about 30 October 1969. 11. On 1 November 1969, the applicant was discharged accordingly with an undesirable discharge. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), with separation program number 246 (for the good of the service). He was credited with serving 9 months and 13 days of total active service and had 74 days of lost time. 12. 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. 13. On 20 June 2002, the ABCMR considered the applicant’s petition for upgrade of his discharge. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. However, the Board noted administrative errors on the applicant's DD Form 214 and directed the issuance of a DD Form 215 to correct the following: * Item 11c (Reason and Authority) - AR [Army Regulation] 635-200, Chapter 10 * Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) - DELETE: Bronze Star Medal ADD: Bronze Star Medal with "V" Device// Vietnam Service Medal with two Bronze Service Stars// Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge// Republic of Vietnam Civil Actions Honor Medal First Class 14. On 6 May 2004, the ABCMR reconsidered the applicants petition for an 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 for relief. The applicant has submitted at least four other requests for reconsideration and those requests were closed without action. 15. 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. 16. Based on the applicant's petition referring to PTSD and other mental health issue, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section below. This agency does not provide copies of ARBA Medical Staff reviews to applicant's and/or their legal representatives prior to adjudication of the case. 17. MEDICAL REVIEW: a. The applicant requests a reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) 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 November 1968. He served in Vietnam from 9 May 1969 to 30 October 1969; 2) His DA Form 20 (Enlisted Qualification Record) shows he was reported as absent without leave (AWOL) on 1 May 1969 and returned to military control on 5 May 1969; 3) On 25 September 1969, 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 two specifications of being AWOL from on or about 17 July until 29 August 1969, and from on or about 17 September until 22 September 1969. Additional charge sheets show he was charged with being disrespectful in language towards his superior noncommissioned officer on or about 24 September 1969 and disobeying a lawful command on or about 29 September 1969; 4) On 16 October 1969, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, Chapter 10; 5) Subsequently, the applicant's chain of command recommended approval of his discharge request and the issuance of an UOTHC discharge. On 27 October 1969, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade with the issuance of an Undesirable Discharge Certificate; 6) On 1 November 1969, the applicant was discharged accordingly with an undesirable discharge. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), with separation program number 246 (for the good of the service). c. The 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 civilian BH records were provided for review. d. The applicant requests an upgrade of his UOTHC discharge to honorable. He contends his misconduct was PTSD and Other Mental Health issues. A review of the records was void of any BH diagnosis or treatment for the applicant during or after service and he provided no documentation supporting his contention. In absence of documentation supporting the applicant’s contention of PTSD and Other Mental Health issues, there is insufficient evidence to support that his misconduct was PTSD and Other Mental Health issues. As such, there is insufficient evidence to warrant an upgrade of the applicant discharge characterization. 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. (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 an upgrade of his UOTHC discharge to honorable. He contends his misconduct was PTSD and Other Mental Health issues. A review of the records was void of any BH diagnosis or treatment for the applicant during or after service and he provided no documentation supporting his contention. In absence of documentation supporting the applicant’s contention of PTSD and Other Mental Health issues, there is insufficient evidence to support that his misconduct was PTSD and Other Mental Health issues. As such, there is insufficient evidence to warrant an upgrade of the applicant discharge characterization. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial 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. One potential outcome was to deny relief based on the medical opine finding absence of documentation supporting the applicant’s contention of PTSD and Other Mental Health issues, there is insufficient evidence to support that his misconduct was PTSD and Other Mental Health issues. However, upon review of the applicant’s petition, available military records and medical review, the Board considered the advisory opinion finding insufficient evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. A review of the applicant’s; records was void of any BH diagnosis or treatment for the applicant during or after service and he provided no documentation supporting his contention. 2. The Board determined, based on the preponderance of evidence the punishment received by the applicant was harsh for the misconduct and found sufficient evidence to support upgrade of his discharge. The Board noted the applicant was a purple heart and bronze star with V device recipient. Based on liberal consideration, the Board agreed an upgrade to general under honorable conditions was warranted. Therefore, the Board granted partial relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 for the period ending 1 November 1969 to show his characterization of service as general, under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under other than honorable conditions (UOTHC) discharge to 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. 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 (VA) 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) AR20220012088 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1