IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220006774 APPLICANT REQUESTS: In effect, her late husband's under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * Former Service Member's (FSM) death certificate * Department of Veterans Affairs (VA) administrative and medical records 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 the decorated FSM died on 17 February 2022, and was to be buried at Arlington National Cemetery. However, one of his two periods of service was characterized as under honorable conditions, and he was denied burial there. The FSM was receiving VA compensation for post-traumatic stress disorder (PTSD), as well as other issues related to his service in Vietnam. A request for posthumous upgrade of his character of service is desired. 3. The FSM was inducted into the Army of the United States on 11 February 1966 with a 2-year service obligation. He completed training with award of military occupational specialty 91B (Medical Corpsman). He served in the Republic of Vietnam from 10 January 1967 through on or about 8 January 1968. 4. He was honorably discharged on 8 January 1968 and transferred to the U.S. Army Reserve (USAR) Control Group in the grade of E-2. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 1 year, 10 months, and 28 days of net active service. 5. The FSM enlisted in the Regular Army on 16 January 1970, for 3 years. He served in the Canal Zone from 2 February 1970 through 5 February 1972. The highest grade he held was E-3. 6. Summary Court-Martial Order Number 5, issued by Headquarters, 4th Battalion, 10th Infantry Division, Fort Davis, Canal Zone, dated 24 February 1971 is missing page two. However, this order and the DA Form 20B (Record of Court-Martial Conviction) shows the FSM was found guilty of: * being disrespectful toward a superior commissioned officer and disobeying a lawful command from a commissioned officer, on or about 15 December 1970 * being disrespectful to a commissioned officer and disobeying a lawful command from a commissioned officer, on or about 1 February 1971 7. The sentence was adjudged on 19 February 1971 and included reduction to E-1, forfeiture of $123.00 for one month, and confinement for 15 days (suspended). The sentence was approved on 24 February 1971. 8. General Court-Martial Order Number 2, issued by Headquarters, U.S. Army Forces Southern Command, Fort Amador, Canal Zone on 22 November 1971 shows (missing page four) the FSM was found guilty of: * disobeying a lawful order from a commissioned officer, using a threatening violence against a commissioned officer, participating in a breach of peace, and three specifications of disrespect towards a commissioned officer, on or about 18 March 1971 * escaping from lawful confinement on or about 27 April 1971 * being absent without leave (AWOL) from on or about 27 April 1971 until on or about 28 June 1971 9. The sentence was adjudged on 29 September 1971 and included confinement at hard labor for 15 months, forfeiture of all pay and allowances, and to be separated from service with a bad conduct discharge (suspended until 17 November 1972). The sentence was approved on 22 November 1971. 10. General Court-Martial Orders Number 368, issued by Headquarters, U.S. Army Correctional Training Facility, Fort Riley, Kansas on 22 December 1971, directed that effective 3 January 1972, the unexecuted portion of the approved sentence to a bad conduct discharge was suspended until 17 November 1972 (with a provision for an automatic remission), confinement for 15 months, and forfeiture of all pay and allowances, was to be suspended until 2 February 1972, to be remitted without further action (appellate review pending. 11. The FSM accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * 21 March 1972, for failure to go to his appointed place of duty on three occasions; his punishment was forfeiture of $30.00 pay for a month and 21 days of extra duty * 7 April 1972, for being AWOL from 3 April 1972 until 4 April 1972; his punishment was forfeiture of $160.00 pay for one month, 30 days of restriction, and 14 days of extra duty 12. A Report of Mental Status Evaluation, dated 30 March 1972, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 13. On 17 April 1972, the FSM acknowledged he had been counseled on deficiencies noted in his conduct and performance of duty, and he understand that failure to improve could result in separation from the service with a general discharge. 14. On 19 April 1972, the FSM's immediate commander recommended that the FSM be separated under the provisions of First U.S. Army Circular 600-134 (Elimination Under the Qualitative Management Program (QMP)), dated 4 October 1971. The commander stated the FSM had been counseled on five occasions for inadequate performance of his duties since assigned on 29 February 1971. Upon assignment to his duty section, it became apparent that the Soldier had no intentions of performing his duties. Furthermore, his attitude, contempt for the Service and the responsibilities of a service member were readily visible to his supervisors and coworkers. He was totally lacking in motivation as well as possessing an attitude so poor as to render him of no further use to the Service. Despite frequent counselling, there was no indication that he intended to improve. 15. On 4 May 1972, the separation authority approved the recommendation in accordance with the provisions of Army Regulation 600-200 (Enlisted Personnel Management System), Chapter 4, and Department of the Army (DA) Message 242110Z September 1971, with the corresponding separation program number (SPN) related to "separation for failure to demonstrate adequate potential for promotion advancement" and the issuance of a DD Form 257A (General Discharge Certificate). 16. The FSM was discharged on 10 May 1972 in the grade of E-2. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and DA Message 242110Z September 1971 with an under honorable conditions characterization of service. He was credited with 1 year, 6 months, and 14 days of net active service this period with 3 years, 11 months, and 5 days of other service. He had three periods of lost time totaling 286 days. His awards are listed as the: * Silver Star * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Combat Medical Badge * Markman Qualification Badge with Rifle bar. 17. General Court-Martial Order Number 14, issued by Headquarters, Department of The Army, Washington, D.C. on 3 February 1973, states that the FSM's sentence having been complied with, was ordered to be duly executed. It also noted that the FSM had been discharged with a general discharge on 10 May 1972. 18. The FSM passed away on 17 February 2022. 19. The applicant provides the FSM's VA progress notes and a listing of his service- connected disability rating as follows: * prostate cancer, 100 percent (%) * PTSD, 70% * diabetes mellitus - type 2, 20% * right upper diabetic peripheral neuropathy, 20% * right lower diabetic peripheral neuropathy, 20% * left lower diabetic peripheral neuropathy, 20% * left upper diabetic peripheral neuropathy, 10% * tinea pedis and onychomycosis, 10% * erectile dysfunction, 0% * hepatitis C, 0% 20. 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. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting in effect, upgrade in her late husband’s discharge under honorable conditions (general). 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) Applicant states FSM died 17 February 2022 and was to be buried at Arlington National Cemetery. However, one of his periods of service was characterized as under honorable conditions and he was denied burial there. FSM was receiving VA compensation for PTSD and other Vietnam service-related conditions. (2) He was initially inducted on 11 February 1966 and served in RVN from 10 January 1967 through on/about 8 January 1968. He was honorably discharged on 8 January 1968 and transferred to US Army Control Group. (3) He enlisted in the Regular Army on 16 January 1970. He served in the Canal Zone from 2 February 1970 through 5 February 1972, (4) Summary Court-Martial Order dated 24 February 1971 (missing page 2) and associated documents show FSM was found guilty of being disrespectful toward a superior commissioned officer and disobeying a lawful command from a commissioned officer on/about 15 December 1970; and being disrespectful to a commissioned officer and disobeying a lawful command from a commissioned officer on/about 1 February 1971. (5) General Court-Martial Order dated 22 November 1971 (missing page 4) shows FSM was found guilty of disobeying a lawful order from a commissioned officer, using a threatening violence against a commissioned officer (unclear?), participating in a breach of peace, and three specifications of disrespect towards a commissioned officer, on or about 18 March 1971; escaping from lawful confinement on or about 27 April 1971; being absent without leave (AWOL) from on or about 27 April 1971 until on or about 28 June 1971. (6) FSM accepted NJP on 21 March 1972 for failure to go to his appointed place of duty on 3 occasions, and on 7 April 1972 for being AWOL 3-4 April 1972. (7) Report of Mental Status Evaluation dated 30 March 1972 was unremarkable and he was cleared for proceedings deemed appropriate by command. (8) Records indicate that he was recommended for elimination under the Qualitative Management Program. Commander noted FSM had been counseled on 5 occasions for inadequate performance of duties since assigned on 29 February 1971. Commander elaborated that FSM attitude and contempt for the Service were visible to supervisors and co-workers. He was lacking in motivation with a poor attitude. (9) FSM was discharged 10 May 1972. DD214 shows he was discharged IAW AR 635-200 and DA Message 242110Z September 1971, with an under honorable conditions characterization of service. His corresponding SPN was related to “separation for failure to demonstrate adequate potential for promotion advancement.” c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD associated with application. Death certificate shows he passed away 17 February 2022. VA documentation of 12 April 2011 indicates “severe PTSD” with a 70% SC (combat from Vietnam), alcohol concerns, and major depression in addition to numerous medical issues to include diabetes, hypertension, and hepatitis C. All available service and disciplinary records reviewed, which were summarized in ROP. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the FSM’s time of service. e. JLV Available VA records were reviewed via JLV. Records indicate FSM has a service connection for PTSD (70%) and is 100% service connected overall. Other service connections include neoplasm, malignant, genitourinary (40%); diabetes mellitus (20%); multiple nerve paralyses rated between 10% and 20%; hepatitis C (0%); and eczema (10%). Per his PTSD/mental health assertions, multiple Compensation and Pension Evaluations were noted in his record, however they were devoid of clinical data and referenced only dictation of the reports. For the purposes of this opine, his service connection for PTSD secondary to service in Vietnam has been established. Psychological Assessment dated 29 May 1997 indicates traumatic exposure to death of others in his unit and treating wounded as a combat medic in Vietnam; inpatient treatment was recommended but it is unclear if this occurred. He was admitted to a PTSD Unit from 24 July through on/about 17 October 2006, with diagnosis of PTSD secondary to combat experiences as a medic in Vietnam. An assessment dated 26 July 2006 references experience of additional noncombat trauma when serving in Panama, after witnessing an electrocution and providing resuscitative efforts; evaluation describes “an agitated and angry demeanor, and stated that anxiety, depression and anger have plagued him since Viet Nam. Vet reports that he gets into altercations and fights with others frequently and that he has always had to watch his temper around his kids… He has lost a number of jobs secondary to his temper and has extreme problems with authority.” Behavioral Health ER Consult of 12 April 2011 noted perseveration on experiences in Vietnam and questions why he was not killed when so many good friends did not come back alive. He described the full spectrum of symptoms consistent with PTSD in addition to associated alcohol concerns, “self-medicates with alcohol daily.” Diagnosed PTSD, Severe; Major Depression; and alcohol abuse vs dependence. He followed up for outpatient evaluation/treatment on 25 April 2011 which described after his re-enlistment he “was stationed in Panama. couldn't get re-adjusted back here...I was real alone...I knew everybody was looking at me like I was crazy...couldn't sleep, couldn't eat…then overseas had a run-in with this officer and got busted.” Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The advocate for the FSM asserts PTSD associated with the circumstances of discharge, and records indicate 70% SC for PTSD. 2. Did the condition exist or experience occur during military service? Yes. The assertion is supported by service connection for PTSD. 3. Does the condition or experience actually excuse or mitigate the discharge? Partial. On behalf of the deceased FSM, his advocate asserts mitigation via PTSD secondary to service in Vietnam. PTSD is service connected and is presumed to exist prior to his service in Panama, during which the multiple disciplinary infractions leading to discharge occurred. The BH advisor opines that his offenses are partially mitigated by PTSD. The natural course and history of PTSD is associated with hyperarousal symptoms including irritability and anger; avoidance, especially of situations which remind one of traumatic events; and distrust of others, especially authority figures. The majority of FSM offenses appear to be associated with the above, to include verbal disrespect and a generally problematic attitude/behavior toward superiors; periods of AWOL; failure to report. However, PTSD does not impair one’s ability to differentiate right from wrong and adhere to the right, and therefore does not mitigate the charge of escaping from lawful confinement. The record appears to suggest a significant change in performance and behavior during his enlistment with service in Panama compared to his service in Vietnam, consistent with the impact of PTSD (which was not a formally diagnosable psychiatric condition until 1980). His SPN (21U) indicated “separation for failure to demonstrate adequate potential for promotion advancement;” the record, in totality, is consistent with noteworthy negative impact of post-traumatic impairment (now diagnosed as PTSD) on his potential for promotion and advancement. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the former service member’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 grant relief based on the former service member receiving the silver star medal for his service in the Republic of Vietnam. However, upon review of the FSM’s petition, available military records and medical review, the Board concurred with the advising official finding his offenses are partially mitigated by PTSD. The natural course and history of PTSD is associated with hyperarousal symptoms including irritability and anger; avoidance, especially of situations which remind one of traumatic events; and distrust of others, especially authority figures. However, the Board found that PTSD does not impair one’s ability to differentiate right from wrong and adhere to the right, and therefore does not mitigate the charge of escaping from lawful confinement. 2. The Board noted the FSM was awarded the Silver Star Medal for his actions in the Republic of Vietnam, however, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The FSM was discharged and provided an under honorable conditions (General) characterization of service. The Board agreed that the facts and circumstances surrounding the FSM UMCJ are absent, the Board noted that the applicant's discharge characterization is warranted based on what was made available for review as such, he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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 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 600-200, Chapter 4, then in effect, set forth policy and prescribed procedures for denying reenlistment under the QMP. That program was based on the premise that reenlistment was a privilege for those whose performance, conduct, attitude, and potential for advancement met Army standards. It was designed to enhance the quality of the career enlisted force, selectively retain the best qualified Soldiers to 30 years of active duty, deny reenlistment to non-progressive and nonproductive Soldiers, and encourage Soldiers to maintain their eligibility for further service. Department of the Army (DAPE-MPP) Message Number 242110Z, dated September 1971, extended the provisions of the QMP to allow for the early separation of Soldiers in the grades of E-1 and E-2 who had failed to demonstrate adequate potential for promotion advancement. 4. 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 4, as then in effect, set forth policy and prescribed procedures for denying reenlistment under the Qualitative Management Program (QMP). This program is based on the premise that reenlistment is a privilege for those whose performance, conduct, attitude, and potential for advancement meet Army standards. It is designed to (1) enhance quality of the career enlisted force, (2) selectively retain the best qualified Soldiers to 30 years of active duty, (3) deny reenlistment to nonprogressive and nonproductive Soldiers, and (4) encourage Soldiers to maintain their eligibility for further service. Therefore, all enlisted personnel must establish their eligibility to remain in the Army by continually demonstrating their efficiency and developing their potential for further service. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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.) AR20220006774 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1