IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007047 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge, and a personnel appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge), with personal statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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 his character of discharge is unjust. He was a great Soldier serving in Vietnam, he was awarded a Purple Heart and Bronze Star Medal. He concluded his service obligation and went home. Twenty years later he was contacted and informed that he was absent without leave (AWOL) and given the options: to sign documents and leave, or spend several weeks at Fort Sill, OK, missing work and his family. He signed the documents and went home. He later filed a congressional complaint and assumed his character of discharge would be upgraded, but it was not. 3. By self-authored statement, the applicant reiterates the circumstances that led to his discharge and his actions to get it corrected. 4. On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) and other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 5. The applicant at the age of 17-years old, with the consent of his mother, enlisted in the Regular Army on 23 January 1969 for a 3-year term of service. He was awarded military occupational specialty 11D (Armor Reconnaissance Specialist). 6. He served in Vietnam from 4 June 1970 through 26 April 1971. He was honorably discharged on 12 July 1971, for immediate reenlistment. He was credited with 2 years, 5 months, and 20 days of net active service this period. He was issued a DD Form 214 (Armed Forces of the United States report of Transfer or Discharge) for this period of honorable service. He was awarded or authorized the Vietnam Campaign Medal, Vietnam Service Medal, and the Combat Infantry badge. 7. The applicant reenlisted on 13 July 1971, for a 6-year term of service in the rank of Sergeant/E-5. 8. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 11 August 1971, for failure to go at the time prescribed to his appointed place of duty, on or about 10 August 1971. 9. Court-martial charges were preferred against the applicant on 5 December 1990 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 25 September 1971 through on or about 1 December 1990. 10. The applicant consulted with legal counsel on or about 7 December 1990 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 a UOTHC 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. He acknowledged in his request for discharge 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected not to submit a statement in his own behalf. 11. On 8 January 1991, the separation authority approved the applicant's request for discharge for the good of the service and directed that his reduction to the lowest enlisted grade with the issuance of a UOTHC discharge. 12. The applicant was discharged on 25 January 1991. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 4 months and 7 days of net active service this period, with a period of lost time from 25 September 1971 to 1 December 1990. He was authorized or awarded the Bronze Star Medal, Purple Heart, Combat Infantryman Badge, and the Parachutist Badge. 13. 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. 14. 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. 15. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge and an appearance before the Board. 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 asserts unjust discharge, with prior awards of Purple Heart and Bronze Star in Vietnam. He concluded his service obligation and went home. Twenty years later he was contacted, told he was he was AWOL and was given options of redress. He signed some documents, later filed a Congressional complaint, and assumed his character of discharge would be upgraded, but it was not. (2) On his DD293 he notes PTSD and other mental health issues as contributing and mitigating factors. (3) He enlisted in the RA on 23 January 1969. He served in RVN from 4 June 1970 to 26 April 1971. He was honorably discharged for immediate re-enlistment in July 1971. (4) He accepted NJP on 11 August 1971 for failure to report at the time and place of assigned duty on/about 10 August 1971. (5) Court-martial charges were preferred against the applicant on 5 December 1990, showing AWOL on/about 25 September 1971 through on/about 1 December 1990. (6) He was discharged on 25 January 1991 under AR 635-200 Chapter 10, in lieu of court-martial, UOTHC. c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. Application references PTSD and other mental health conditions associated with request. Personal statement reviewed, in essence claiming he thought he had been discharged from service in 1971 and subsequent administrative error. He has provided no additional psychiatric or medical records. His DD214 dated 1 February 1991 includes Bronze Star Medal and Purple Heart among other awards. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. Records indicate applicant has no service-connected conditions, and his record is void of clinical data. f. Other Query of HAIMS did not return any documents for this applicant. 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 asserts PTSD and other mental health conditions associated with the circumstances of his discharge. 2. Did the condition exist or experience occur during military service? Yes, but by applicant assertion only. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant asserts mitigation due to PTSD and other mental health factors associated with the circumstances of his discharge. His assertion alone is worthy of consideration by the Board. Although in some cases PTSD or other mental health conditions may mitigate AWOL, the circumstances he asserts do not appear to be consistent with a typical pattern of AWOL associated with mental health conditions; rather he is asserting that he thought his term of service was over. Furthermore, there is no available evidence, other than his assertion, to support the presence of PTSD or another condition at the time he went AWOL. Therefore, the advisor is unable to find any potential nexus and mitigation between his mental health status and the circumstances of his AWOL and eventual separation. 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 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official whereas they are unable to find any potential nexus and mitigation between his mental health status and the circumstances of his AWOL and eventual separation. The Board determined there is insufficient evidence of in- service mitigating factors for the misconduct to weigh 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. Therefore, relief was denied. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINSTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 25 January 1991. As a result, amend his DD Form 214 by adding: Republic of Vietnam Gallantry Cross with Palm Unit Citation. 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 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, an UOTHC discharge was normally considered appropriate. 5. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 6. 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. 7. 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) AR20220007047 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1