IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220005969 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge to be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 29 March 1970 * DD Form 214 (Report of Separation from Active Duty), dated 15 December 1976 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 July 1980 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 understands he made mistake as a young Soldier, but he should not be punished for the rest of his life. He served his country honorably while in combat during the Vietnam War and across the globe during his 10 plus years as a Soldier. He felt during the investigation he was not treated fairly due to not having complete command of the English language. Although he has not been officially diagnosed with post-traumatic stress disorder (PTSD), he displays all the symptoms associated. He also has Type II Diabetes, which is a presumptive Agent Orange illness, among other illnesses. He doesn't have Veteran's benefits; therefore, in many cases his illnesses and conditions go untreated. 3. On his DD Form 149, the applicant notes PTSD, as a contributing and mitigating factor in the circumstances that resulted in his separation. However, he provided no evidence of a diagnosis of PTSD. 4. The applicant enlisted in the Regular Army on 13 May 1968. He completed training with award of military occupational specialty 36K (Tactical Wire Operations Specialist). 5. He served in Vietnam from 21 February 1969 through 14 August 1969. He was honorably discharged on 29 March 1970 for the purpose of immediate reenlistment. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 6. The available records do not include all of the applicant's enlistment/reenlistments documents. However, a DD Form 214 for the period ending 15 December 1976, shows he served in Vietnam from 10 October 1970 through 17 October 1971. He was honorably discharged for the purpose of immediate reenlistment. 7. The applicant reenlisted in the Regular Army on 16 December 1976, for 4 years. The highest rank he attained was sergeant/E-5. 8. Court-martial charges were preferred against the applicant on 29 April 1980, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * disobey a willful order from a commissioned officer, on or about 26 April 1980 * being disrespectful in deportment toward his first sergeant by displaying his middle finger in an obscene gesture, on or about 26 April 1980 * committing a lewd act upon a female under 16 years of age, by placing his hands in her panties and fondling her genitals, on or about 25 April 1980 * orally communicate to a female under 16 years of age, certain obscene language, on or about 25 April 1980 9. The applicant consulted with legal counsel on 30 May 1980 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal 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 lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further 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 Department of Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he could request a separation physical and submit any statements he desired in his own behalf; however, the applicant waived both of these rights. 10. The applicant's chain of command recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he receive a UOTHC discharge. Additionally, on 26 June 1980, the Staff Judge Advocate recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he be issued a UOTHC Discharge Certificate. 11. The available record is void of the separation authority's approval of the applicant's request for discharge. 12. The applicant was discharged on 14 July 1980. His DD Form 214 shows he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court-martial. His service was characterized as UOTHC. He was credited with 3 years, 6 months, and 29 days of net active service this period with 8 years, 7 months, and 3 days of prior active service. 13. His DD Form 214 lists his awards as the Army Commendation Medal, Army Good Conduct Medal (4th award), National Defense Service Medal, Armed Forces Expeditionary Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Republic of Vietnam Gallantry Cross with Palm Unit Citation, Overseas Service Bars (3), and the Expert Qualification Badge with Rifle and Pistol bars. 14. His DA Form 20 (Enlisted Qualification Record shows he served in Vietnam during five campaign periods and his Armed Forces Expeditionary Medal was for service in Korea. It also shows the applicant had foreign service as follows in: * the Canal Zone from 14 May 1970 through 3 September 1970 * Korea from 31 March 1973 through 29 July 1975 * Germany from 1 March 1979 through 10 April 1981 15. 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. 16. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge characterization. The ADRB denied the applicant's request on 23 October 1981. A copy of this decisional document is not available. 17. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NRs) 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. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his under other than honorable conditions (UOTHC) 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 into the Regular Army on 13 May 1968; 2) He served in Vietnam from 21 February 1969 -14 August 1969. 3) Court-martial charges were preferred against the applicant on 29 April 1980 for: A) disobeying a willful order from a commissioned officer on 26 April 1980; B) being disrespectful in toward his first sergeant on 26 April 1980; C) sexually assaulting a female under 16 years on 25 April 1980; D) using obscene language through oral communication with a female under 16 years of age on 25 April 1980; 4) The applicant was discharged on 14 July 1980 with a Chapter 10, for conduct triable by court-martial. His service was characterized as UOTHC; 5) The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge characterization. The ADRB denied the applicant's request on 23 October 1981. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. The applicant did not provide any civilian medical records. d. The applicant asserts he was experiencing PTSD related to his deployment to Vietnam, which mitigated his misconduct. However, the applicant admits in his application that he is “undiagnosed”, and there is no medical documentation provided or available to support the applicant has been diagnosed with PTSD or another mental health condition. A review of JLV is void of behavioral health related treatment records, and the applicant has no service-connected disabilities e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant asserts he has experienced PTSD symptoms that mitigated his experience. (2) Did the condition exist or experience occur during military service? Yes, the applicant reporting experiencing PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence that applicant has ever been diagnosed with PTSD beyond his self-report. Also, there is no nexus between PTSD and sexual assault given that sexual assault is not part of the natural history or sequelae of PTSD. The applicant contends he was experiencing PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 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 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. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference 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 :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 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. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, 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, an under other than honorable conditions discharge was normally considered appropriate. 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 Discharge Review Boards (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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 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.) AR20220005969 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1