IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230000279 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to a general discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 12 September 2022 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.) * DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) 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 served in Vietnam as a radio operator. His service at the time was honorable. When he returned home from Vietnam, he endured traumatic insults from the general public and the Veterans Affairs (VA). He also witnessed how other Soldiers were treated. This and the traumatic events while in Vietnam led to his dissatisfaction and caused him to go absent without leave (AWOL). He has health issues from being exposed to agent orange while in Vietnam and would like to get his VA benefits. Post-traumatic stress disorder (PTSD) and other mental health conditions are related to his request. (See full statement). 3. On 12 September 1969, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty (MOS) 31M, Radio Relay and Carrier Attendant. 4. He served in Vietnam from 2 August 1970 to 23 July 1971. 5. General Orders Number 3173, issued by Headquarters, 1st Signal Brigade on 29 November 1970, awarded him the Army Commendation Medal for achievement on 1 November 1970, in Vietnam. 6. Special Court-Martial Order Number 105, issued by Headquarters, 3rd Brigade, 2nd Armored Division, shows a Special Court-Martial convened on 29 November 1971. a. The applicant was arraigned, tried, and convicted of the charge Article 86, Specification in that the applicant did, on or about 6 August 1971, without authority, absent himself from his unit to wit: 502nd Administration Company (Replacement), absent until on or about 5 November 1971. b. The court sentenced him to reduction to grade of private E-2, and forfeiture of $190.00 per month for two months. c. The sentence was adjudged on 29 November 1971. d. On 3 December 1971, the convening authority approved the sentence, and ordered it duly executed. 7. On February 1972, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent from his place of duty on 11 February 1972. His punishment consisted of reduction to private E-1 (suspended for 30 days); forfeiture of $50.00 pay; and 30 days of extra duty (suspended for 30 days). 8. On 7 August 1972, his duty status changed from present for duty (PDY) to absent without leave (AWOL). He was dropped from the rolls (DFR) on 6 October 1972. 9. On 16 February 1973, the applicant was returned to military control and his duty status changed from DFR to PDY. 10. A Disposition Form shows the applicant was pending trial for AWOL on one occasion totaling 193 days and two prior periods of AWOL totaling 95 days. It also shows that the applicant was quoted as saying he went AWOL because he could not take the Army and wanted out of the military. 11. The applicant’s record is void of the applicant’s voluntary request for discharge. However, it does contain recommendations from the immediate and intermediate commanders, dated 24 March 1973, wherein the commanders recommended approval of the applicant's request for discharge and the recommendation to be issued an Undesirable Discharge Certificate. 12. On 24 March 1973, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service under the provisions of AR 635-200, Chapter 10 and issued an Undesirable Discharge Certificate and the applicant's reduction to private/E-1. 13. The applicant was discharged on 30 March 1973. His DD Form 214 shows he was discharged from active under the provisions of AR 635-200, Chapter 10, separation program number (SPN) 246/Reentry Code 4, for the good of the service – in lieu of trial by court-martial, with the issuance of an under conditions other than honorable certificate. His DD Form 214 shows: a. He completed 2 years, 9 months, and 7 days of net active service this period. b. Lost time from 6 August to 4 November 1971, 11 February to 14 February 1972, and 7 August 1972 to 15 February 1973. 14. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 15. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 30 March 1973. These awards will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in item 24 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized). 16. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 17. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 18. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his characterization of service from under other than honorable conditions to a general discharge. The applicant asserts that PTSD and other mental health mitigate his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted into the RA on 12 September 1969. * He served in Vietnam from 2 August 1970 to 23 July 1971. * Applicant served in the Republic of Vietnam from 14 January 1970 to 5 December 1970 as an infantryman. Applicant earned the Army Commendation Medal. * Applicant underwent a Special Court Martial, was arraigned, tried and convicted of being AWOL 6 August 1971 to 5 November 1971. * On February 1972, he accepted nonjudicial punishment (NJP) for being absent from his place of duty on 11 February 1972. * On 7 August 1972, his duty status changed from present for duty (PDY) to absent without leave (AWOL). He was dropped from the rolls (DFR) on 6 October 1972. On 16 February 1973, the applicant was returned to military control and his duty status changed from DFR to PDY. * A Disposition Form shows the applicant was pending trial for AWOL on one occasion totaling 193 days and two prior periods of AWOL totaling 95 days. * The applicant was discharged on 30 March 1973 under AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial, with the issuance of an under conditions other than honorable certificate. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, DD Form 293, his ABCMR Record of Proceedings (ROP), DD Form 214, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV), though minimal data was available for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant asserts that he when he returned from Vietnam, he endured traumatic experiences and treatment from the general public and the VA. These experiences, combined with the traumatic events of Vietnam led to him going AWOL. The applicant asserts PTSD and other mental health concerns mitigate his misconduct. There were no military medical records provided to support PTSD, or other mental health, as a mitigating factor, though that is to be expected given the era of service. His EHR is also void of any mental health encounters since his discharge. The applicant does not hold any diagnoses from the VA, is not service connected, and otherwise has not been engaged in any documented mental health care. That said, due to the characterization of the applicant’s discharge, he likely is not eligible for most services through the VA. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available. Per these records, the applicant has not engaged in any mental health care and did not have any mental health diagnoses in his records. Also, the applicant did not provide any civilian/community care mental or physical health records, since his time in service, to substantiate his assertions. e. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is insufficient evidence, outside of self-report, to support the applicant had a condition or experience at the time of service that would mitigate his discharge. However, Liberal Consideration guidance, his contention is sufficient to warrant the Board’s consideration. 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 mitigate his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the PTSD and/or other mental health were present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD and other mental health. There is no available evidence for review, beyond self-report, that the applicant had a mitigating condition, though this is not uncommon given the lack of electronic health records at that time, nor the length of time since his service. It’s important to note, going AWOL is an avoidance behavior associated with the natural history and sequelae of PTSD. There is a nexus between his reported condition and his misconduct that led to his discharge. Per Liberal Consideration guidelines, his assertion alone is worthy of consideration by the Board and this Agency Behavioral Health Advisor would recommend an upgrade in his characterization of service. 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 finding there is insufficient evidence, outside of self- report, to support the applicant had a condition or experience at the time of service that would mitigate his discharge. The medical opine found no available evidence for review, beyond self-report, that the applicant had a mitigating condition, though this is not uncommon given the lack of electronic health records at that time, nor the length of time since his service. The Board determined there was insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of his under other than honorable conditions (UOTHC) discharge. Therefore, the Board denied relief. 3. 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. 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. ADMINISTRATIVE 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 30 March 1973. As a result, amend his DD Form 214 by adding: * Army Commendation Medal - General Orders Number 3173 * National Defense Service Medal * Vietnam Service Medal w/ bronze star * Vietnam Counteroffensive Phase VII * Republic of Vietnam Gallantry Cross with Palm Unit Citation 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. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 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 under other than honorable conditions, 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; TBI; sexual assault; sexual harassment. Boards were directed 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 describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 6. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000279 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1