IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220003892 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) 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 (ABCMR) 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 states he had an outstanding record throughout his service and earned many commendations and badges, including two Bronze Stars. He made one mistake by going absent without leave (AWOL), he did not receive any debriefings after returning from the Republic of Vietnam (RVN) and was suffering mentally. He spent two consecutive years in the RVN and was a good sergeant. He never had disciplinary issues and received an honorable discharge for his first 3-year enlistment. He was incarcerated, demoted and discharged during his second enlistment without any counseling. 3. The applicant's service record shows: a. On 28 February 1969, the applicant enlisted in the Regular Army, for a 3-year service commitment. Upon completion of basic training, he was assigned to Fort Benning, GA, for completion of the Basic Airborne Course. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). b. On or about 22 November 1969, the applicant arrived at his unit in the RVN. He was promoted to Sergeant/E-5 on 1 September 1970. He was honorably discharged for immediate reenlistment on 11 July 1971. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), he was issued shows he was credited with completing 2 years, 4 months, and 14 days of net service this period. c. On 12 July 1971, the applicant reenlisted in the Regular Army for a 6-year service obligation. He was reassigned from the RVN to Fort Benning, GA on 19 July 1971, and arrived at his unit on 24 September 1971. d. On 28 September 1973, the applicant was reassigned and departed Fort Benning, GA, enroute to Fort Bragg, NC. However, A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 14 May 1974, shows he never reported to his unit and was reported as AWOL from 1 October 1973 until 3 May 1974. e. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. f. Special Orders Number 137 Extract, issued by Headquarters, U.S. Army School/ Training Center and Fort Gordon, Fort Gordon, GA on 15 July 1974, shows the applicant was reassigned for the purpose of separation processing and the issuance of a DD Form 258A (UOTHC Discharge Certificate). g. The applicant was discharged on 15 July 1974, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for conduct triable by court-martial. His DD Form 214 confirms his service was characterized as UOTHC, and he was reduced to the lowest enlisted grade on 30 June 1974. He was credited with completing 2 years, 4 months, and 19 days of net service this period. He was awarded or authorized the: * Vietnam Campaign Medal * Vietnam Service Medal w/4 bronze service stars * Parachute Badge * Overseas Service Bars (3) * Combat Infantry Badge * Army Commendation Medal w/Oak Leaf Cluster * Air Medal (2d Award) * Bronze, Star Medal * Good Conduct Medal * National Defense Service Medal * Expert Rifle Badge 4. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 5. 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. 6. 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. 7. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: Documentation is void of behavioral health symptoms, conditions, or treatment. However, given the applicant’s service was honorable until his return from Vietnam, it is possible the applicant’s AWOL was related to combat trauma. Additionally, the lack of VA contact and service connection is more likely than not related to the applicant’s type of discharge limiting VA access rather than absence of a psychiatric condition. Given it is more likely than not the applicant was experiencing some level of trauma-based distress upon return from Vietnam, and in light of liberal consideration and nexus between trauma and avoidance, the AWOL is mitigated. Accordingly, an upgrade is recommended. a. The applicant was discharged on 15 July 1974 under AR 635-200, Chapter 10, In Lieu of Trial by Court Martial, with an Under Other than Honorable characterization. The applicant served in Vietnam from approximately November 1969 to July 1971. The basis for separation was a pending Court-Martial for being AWOL from 01 October 1973 to 03 May 1974. The applicant is requesting a characterization upgrade asserting he had an outstanding record and made a mistake by going AWOL related to mental distress. b. Due to the period of service, electronic medical records are void. The separation packet contains an exit physical which is void of behavioral health symptoms, conditions, or treatment per provider and applicant’s self-report. c. The applicant is not service connected and VA records are void of contact. d. The applicant did not submit medical records in support of his assertion. e. Kurta Questions (1) Does the applicant have a condition or experience that may excuse or mitigate the discharge? YES. While documentation is void of a behavioral health condition, records reflect honorable service until the applicant’s return from Vietnam. It is this advisor’s opinion that it is more likely than not the applicant was experiencing some level of emotional distress upon return from Vietnam. (2) Did the condition exist or experience occur during military service? YES. While documentation is void of a behavioral health condition, records reflect honorable service until the applicant’s return from Vietnam. It is this advisor’s opinion that it is more likely than not the applicant was experiencing some level of emotional distress upon return from Vietnam. (3) Does the condition or experience actually excuse or mitigate the discharge? YES. Given the nexus between trauma and avoidance, the AWOL is mitigated. (4) Does the condition or experience outweigh the discharge? N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was 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 Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, other evidence shows he was discharged in lieu of trial by a court-martial. His DD Form 214 confirms his service was characterized as UOTHC and he completed 2 years, 4 months, and 19 days of net service this period. a. A majority of the Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The majority concurred with the medical advisory opinion finding sufficient evidence of in- service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s service did not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. b. The member in the minority determined in the absence of the applicant’s separation packet, the specific misconduct that led to his court-martial charges, and the seriousness of his misconduct is unknown, and thus in-service mitigation is speculative. Based on a preponderance of evidence, the member in the minority 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 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : 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 reissuing him a DD Form 214 for the period ending 15 July 1974 showing his character of service as Under Honorable Conditions, General. * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change * Narrative Reason for Separation: No Change 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, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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. 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. 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, 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) AR20220003892 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1