IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20220007419 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to either under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), dated 15 April 2022 * Exhibit 1 – Self-authored statement (9 pages) * Exhibit 2 – DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 June 1970 * Exhibit 3 – Enlistment Contract, dated 3 June 1970 * Exhibit 4 – DD Form 214, dated 7 July 1971 * Exhibit 5 – Enlistment Contract, dated 8 July 1971 * Exhibit 6A and 6B – In-Service Medical Documents * Exhibit 7 – Memorandum, Appointment of Investigating Officer, dated 27 January 1972 * Exhibit 8 – DD Form 261 (Report of Investigation-Line of Duty and Misconduct Status), dated 16 February 1972 * Exhibit 9 – Memorandum, Line of Duty Update, dated 31 March 1972 * Exhibit 10A – Memorandum, Line of Duty Investigation Cover Sheet, dated March 1972 * Exhibit 11 – DD Form 214, dated 18 October 1972 * Exhibit 12 – Digital Image of State of Missouri Pardon, dated 31 March 2022 * Exhibit 13 – Digital Image of Art Exhibit * Exhibit 14 – Digital Image of Art Book 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 it has been 50 years. He had two previous periods of service with honorable discharges. He was 17 years old when he joined and was just 20 years old when his final discharge was given. The exact circumstances for this last discharge have never been reviewed. As a 70 year old Vietnam Veteran, there are many things he knows and understands about what occurred during his years of service that came only through maturity and learning. He writes a lengthy account of his years of service and hopes to add new facts that were never taken into consideration 50 years ago. Please know that all he wanted to be as a young kid, was an "Army man." 3. At the age of 17, the applicant enlisted in the Regular Army on 5 September 1969 for 3 years. He was discharged on 2 June 1970 for immediate reenlistment for overseas area assignment. He was issued a DD Form 214 for this period of honorable service. 4. The applicant reenlisted in the Regular Army on 3 June 1970, for 6 years. He was honorably discharged on 7 July 1971 for immediate reenlistment and assignment as a drill instructor. He was awarded or authorized the: National Defense Service Medal, Vietnam Service Medal, Overseas Service Bar, and the Army Commendation Medal with 1st oak leaf cluster. 5. The applicant served in Vietnam from on or about 8 August 1970 to 13 August 1971. 6. The applicant reenlisted in the Regular Army on 8 July 1971, for 6 years in the rank of specialist four/E-4. He was reassigned to Fort Ord, CA. 7. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows that that applicant was involved in an automobile accident in Seaside, CA, on or about 20 January 1972. The medical officer determined the accident was not in the line of duty as the enlisted member was drinking while driving. 8. The applicant was reported as absent without leave (AWOL) on 28 January 1972, and remained so absent in a deserter status and was dropped from the unit rolls. 9. A Report of Investigation - Line of Duty, dated 29 February 1972 shows that the investigating officer found the applicant’s automobile accident was not in the line of duty due to own misconduct. 10. On 31 March 1972, the findings of the appointing authority were disapproved and a finding of not in line of duty – due to own misconduct was substituted. 11. On or about 17 September 1972, the applicant was returned to military control from AWOL status. 12. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 13. The applicant’s separation packet is not available for review. However, his DD Form 214 shows he was discharged on 18 October 1972 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, with Separation Program Number (SPN) 246 [discharge for the good of the service – in lieu of trial by court-martial]. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 7 months and 19 days of net active service this period and 1 year and 3 days of other service. He also had 233 days of lost time from 28 January 1972 to 16 September 1972. 14. The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice 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. 15. The applicant provides the following (provided in entirety for the Board): * A self-authored statement, which is a written testimony of his past, detailing his early childhood, a traumatic sexual incident while on active duty, his deployment in Vietnam, the circumstance of his automobile accident, his discharge from the service, his years of substance abuse, and life post-military. * In-service medical documentation that shows he was diagnosed and treated for heroin withdrawal. * A digital image of stationary from the Governor of the State that shows he was granted a full pardon for a 30 June 1982 criminal conviction. * Digital images from his art exhibit and an art book. 16. Clemency guidance to Boards for Correction of Military Records/Naval Records (BCMR/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. 17. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 18. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his UOTHC discharge. 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 reports previous periods of service with honorable discharges. His final discharge was at the age of 20. He writes a lengthy account of his service and hopes it adds facts not considered 50 years ago. (2) He initially enlisted in the RA 5 September 1969 and had periods of honorable service with immediate re-enlistment. He served in RVN from on/about 8 August 1970 to 13 August 1971. (3) DA Form 2173 shows applicant was involved in an automobile accident in Seaside, CA on/about 20 January 1972. Medical officer determined NLOD as applicant was drinking while driving. (4) He was reported AWOL on 28 January 1972 and was eventually DFR. (5) On/about 17 September 1972 he was returned to military control from AWOL status. (6) The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding discharge. (7) He was discharged on 18 October 1972; DD214 confirms discharge under AR 635-200 Chapter 10, SPN 246 (discharge for the good of the service). c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. Extensive “testimony” (Exhibit 1) includes numerous relevant assertions to include growing up in an “abusive home” with physical, emotional, and sexual abuse. He witnessed his older sister attempt suicide by cutting her wrists when he was 5-6. He was sexually abused at age 10. “One of my coping mechanisms, as a kid, was to run away” and he describes a history of dealing with emotional stress by running from rather than facing his issues. He asserts he developed a substance abuse problem while in the Army and alludes to senior cadre providing alcohol even when he was too young to legally drink. He states he was sexually assaulted by a staff sergeant when assigned to Germany while he (applicant) was intoxicated. He also notes that his final discharge was due to AWOL. He describes his service in Vietnam between August 1970 and August 1971, which included heroin use; this was first offered to him by other soldiers, and he did not know at the time it was heroin. He states he eventually had a 6-day hospital stay for heroin withdrawal (apparently while on R&R in Australia). Applicant elaborates that he received no help from the Army for his substance abuse concerns. At Fort Ord, CA, he was involved in a DUI accident, receiving a head injury although no one else was injured. He describes the investigation and his associated concerns, which ultimately led to him going AWOL stating “all I wanted to do was run away from the hurt and shame I was feeling…I had been abandoned or hurt by every other ‘father figure’ in my life and now my commanding officer just shamed me and ‘hurt me’ all over again.” He acknowledges now that this was wrong, but he was “not emotionally mature and I was emotionally brittle” at the time. He goes on to elaborate numerous substance and legal difficulties he had after discharge as well as accomplishments to demonstrate his resilience over time. The statement concludes by noting that after his DUI accident he received no support or encouragement for substance abuse treatment. Medical records support his reports of treatment for heroin withdrawal in March 1971. Exhibit 8 is a DD261 (Report of Investigation) of his accident with finding Not Line of Duty – Not Due to Own Misconduct; Exhibit 9 shows a corrected finding of Not in Line of Duty – Due to Own Misconduct due to involvement of alcohol. 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 A query into JLV for this name/social/date of birth did not return any entries. There was no indication of system errors or incomplete record return, and multiple efforts over time were made. 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, in essence, mental health conditions and MST associated with the circumstances of his discharge. (2) Did the condition exist or experience occur during military service? Yes, per the applicant’s assertion. The official record is generally void of any medical/mental health references other than documentation of treatment for heroin withdrawal. (3) Does the condition or experience actually excuse or mitigate the discharge? Unable to fully opine as the full circumstances and facts of discharge are not found in the record. The applicant, in a personal statement, attributes discharge due to AWOL and asserts, in essence, mental health conditions and a history of MST associated with his discharge. Under liberal consideration, his assertion alone is worthy of consideration by the Board. If the Board accepts the assertion that AWOL was the proximate cause of discharge, the offense would be mitigated. Veteran describes a long history of abuse prior to enlistment with avoidance behaviors as a primary coping mechanism and a history of MST while serving in Germany. Given his described history, which includes development of a substance abuse problem, the BH advisor opines that it is reasonable that he was experiencing, at the time of the offense and discharge, symptoms consistent with a post-traumatic response. Substance abuse problems are often a form of self-medicating the distress associated with history of trauma and violence. Avoidance behaviors such as AWOL are a part of the natural history and sequelae of exposure to traumatic stressors (especially under repeated exposures), even if not formally diagnosed as PTSD, which did not become a recognized diagnostic category until 1980. 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. a. 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 and result in an under other than honorable conditions characterization of service. b. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. Although the applicant attributes his discharge was due to AWOL and asserts that mental health conditions and a history of MST are associated with his discharge, the circumstances of his discharge are not available for review. The Board determined that it is reasonable to assert that his AWOL was the proximate cause of discharge, which mitigates his behavior. The Board agreed with the advisory official’s finding that given the applicant’s described history, which includes development of a substance abuse problem, it is reasonable that he was experiencing, at the time of the offense and discharge, symptoms consistent with a post-traumatic response. Substance abuse problems are often a form of self-medicating the distress associated with history of trauma and violence. Avoidance behaviors such as AWOL are a part of the natural history and sequelae of exposure to traumatic stressors (especially under repeated exposures), even if not formally diagnosed as PTSD. c. While the Board agreed that his service certainly did not rise to the level required for an honorable discharge, the Board determined an upgrade to general, under honorable conditions in accordance with published DoD guidance for liberal consideration of discharge upgrade requests is warranted in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 reissuing the applicant a DD Form 214 for the period ending 18 October 1972 showing: * Character of Service: General, Under Honorable Conditions * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 2. The Board further determined that 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 upgrading the discharge to fully 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 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 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. 4. The Secretary of Defense directed the Service DRBs and Service BCM/NRs, on 3 September 2014, 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. 5. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 6. 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) AR20220007419 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1