IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000555 APPLICANT REQUESTS: an upgrade of his service characterization for the period ending 5 September 1973 from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). 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 was suffering from post-traumatic stress disorder (PTSD) and was not given the proper medical attention as a Vietnam veteran during his term of enlistment, only an alternative. He was honorably discharged in the rank/grade of sergeant/E-5 from his first enlistment. He was not provided the medical attention needed during his second enlistment. He served and represented his country with honor and respect and should be acknowledged for both terms of enlistment. He suffered from PTSD which caused him to seek medical attention. He waited so long because he had little faith in the system. 3. He enlisted in the Regular Army on 13 July 1962 for a period of 3 years. On 25 June 1965 he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his service obligation. 4. On 17 September 1969, he again enlisted in the Regular Army. He served in Vietnam from 25 July 1971 to 6 April 1972. 5. He accepted company-grade nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses: a. on 5 November 1969, for absenting himself from his unit without authority on or about 3 November 1969 and remaining so absent until on or about 5 November 1969. His punishment consisted of forfeiture of $25.00 pay, 14 days of restriction, and 14 days of extra duty; and b. on 17 May 1971, for absenting himself from his unit without authority on or about 10 May 1971 and remaining so absent until on or about 13 May 1971. His punishment consisted of forfeiture of $26.00 per month for 1 month, 5 days of restriction, and 5 days of extra duty. 6. On 24 March 1972, court-martial charges were preferred against him for violation of Article 86 (Absent without Leave), UCMJ: a. specification 1, for absenting himself from his place of duty without authority on or about 6 October 1972 and remaining so absent until on or about 29 March 1973; and b. specification 2, for absenting himself from his place of duty without authority on or about 6 April 1973 and remaining so absent until on or about 22 August 1973. 7. On 4 September 1973, he underwent a mental status evaluation. The examining physician noted he had no significant mental illness and had the capacity to understand and participate in board proceedings. 8. On 7 September 1973, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He acknowledged he made the request of his own free will and was not coerced by any person. He understood that if his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. b. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (now known as the Department of Veterans Affairs), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. c. He elected to submit statements in his own behalf and declined his opportunity to consult with counsel. His records do not contain a corresponding statement, if any. 9. On 26 September 1973, the personnel control facility commander recommended disapproval of his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and recommended trial by a special court- martial with authority to adjudge a bad conduct discharge. He noted the applicant received a special court-martial conviction for being absent without leave in October 1970. (Note: His records are void of evidence relating to this action.) 10. On 9 October 1973, his battalion-level commander recommended approval of his request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and recommended issuance of an Undesirable Discharge Certificate. He also noted the applicant received a special court-martial conviction for being absent without leave in October 1970. 11. On 12 October 1973, the separation approval authority approved the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, with issuance of an Undesirable Discharge Certificate. He directed the applicant's reduction to the rank/grade of private/E-1 prior to separation. 12. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in the rank/grade of private/E-1 on 5 November 1973 under the provisions of Army Regulation 635-200, chapter 10. He completed 3 years and 26 days of net active service during this period with 388 days of lost time. His service was characterized as under other than honorable conditions. His DD Form 214 lists the following individual awards and decorations: * National Defense Service Medal * Vietnam Service Medal with three bronze service stars * one overseas service bar * Republic of Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 13. His available records do not contain copies of his personnel qualification records. 14. On or about 18 July 1979, the Army Discharge Review Board determined he was properly discharged and denied his request for a change in the type and nature of his discharge after careful consideration of his military records and all other available evidence. 15. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his service characterization for the period ending 5 September 1973 from under other than honorable conditions to honorable. The applicant asserted PTSD is a mitigating factor in 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 in the Regular Army on 13 July 1962. He reenlisted on 17 September 1969. * On 5 November 1969, he accepted nonjudicial punishment (NJP) for absenting himself from his unit without authority (AWOL) on or about 3 November 1969 and remaining so absent until on or about 5 November 1969. * On 17 May 1971, he accepted nonjudicial punishment (NJP) for being AWOL on or about 10 May 1971 and remaining so absent until on or about 13 May 1971 * He served in Vietnam from 25 July 1971 to 6 April 1972. * On 24 March 1972, court-martial charges were preferred against him for violation of Article 86 (Absent without Leave), UCMJ: specification 1, for absenting himself from his place of duty without authority on or about 6 October 1972 and remaining so absent until on or about 29 March 1973; and specification 2, for absenting himself from his place of duty without authority on or about 6 April 1973 and remaining so absent until on or about 22 August 1973. * On 7 September 1973, he voluntarily requested discharge under AR 635-200, chapter 10, for the good of the service – in lieu of trial by court martial. It was approved. * The applicant was discharged 5 November 1973 with an Under Other than Honorable Conditions (UOTHC) discharge. * On or about 18 July 1979, the ADRB determined he was properly discharged and denied his request for upgrade. 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, 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). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts PTSD as being related to his request for upgrade. He stated that he was suffering from PTSD and was not given proper medical attention as a Vietnam Veteran during his re-enlistment, and that he was honorably discharged during his first enlistment. There are not mental health records to review in his electronic health records (EHR), as is expected given the timeframe he served. On 4 September 1973, he underwent a mental status evaluation (MSE), which was available in his service records. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, was able to distinguish right from wrong and adhere to the right, met medical retention requirements per AR 40-501, and was not found to have any significant mental illness. He did not provide any medical documentation to support his assertion of mental health concerns during his period of service. No other medical records were provided to substantiate his claim of PTSD during his time in service. e. Per the applicant’s VA EHR, he has engaged in mental health care through the VA, starting in 2013. The applicant has been engaged in outpatient care to include therapy and medication management. He has been diagnosed with major depressive disorder (MDD), unspecified mood disorder, cannabis use disorder, PTSD, abuse of other non-psychoactive substances, other psychoactive substance abuse, and mild cognitive impairment. In his mental health records throughout a decade of care, he has consistently reported trauma related symptoms due to his experiences in Vietnam. He reported in an encounter from 27 November 2013 that “I witnessed so many bad things that I filed a conscientious objective and later went AWOL.” He is not service connected; however, the characterization of his discharge likely prevents him from accessing a majority of VA benefits. If this barrier did not exist, the applicant would likely be service- connected for chronic combat-related PTSD. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is conflicting evidence regarding the applicant having a condition or experience that mitigated his discharge. Per Liberal Consideration guidance, the applicant’s 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, applicant asserts PTSD is related to his request for an upgrade to his discharge. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts PTSD was present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partial. The applicant asserts that PTSD mitigates his misconduct (AWOL), and per Liberal Consideration, his contention is sufficient to warrant the boards consideration. The applicant has been diagnosed and treated for PTSD, as well as MDD, and substance use disorders for over 10 years through the VA. And while he is not service- connected, this is likely due to his characterization. He has consistently attributed his mental health symptoms to his experiences in Vietnam and has consistently reported going AWOL because of these experiences. However, the applicant was seen for a MSE as part of his separation and no serious mental illness was diagnosed at the time. In addition, he did have wo episodes of AWOL prior to his experiences in Vietnam, indicating this may have been a pattern of behavior that predated his trauma exposure. Of note, AWOL is an avoidance behavior that can be associated with the natural history and sequelae of PTSD, there is a nexus between his symptoms/experiences and the AWOLs leading to his discharge. Given the guidance of Liberal Consideration, this advisor recommends at least partial mitigation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that partial relief was 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 considered the advising official opine that there is conflicting evidence regarding the applicant having a condition or experience that mitigated his discharge. The Board determined the applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, was able to distinguish right from wrong and adhere to the right, met medical retention requirements per AR 40-501, and was not found to have any significant mental illness. The applicant did not provide any medical documentation to support his assertion of mental health concerns during his period of service. 2. The applicant provided no post service achievements or character letters of support for the Board to considers. The Board found 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. However, during deliberation, the Board noted the applicant’s records did not annotate some of his Vietnam awards and during his first enlistment he did not receive his Army Good Conduct Medal (1st Award) for the period 13 July 1962 to 25 June 1965. Based on this, the Board granted partial relief to correct his record by awarding him the Army Good Conduct Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation ? 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 awarding him the Republic of Vietnam Gallantry Cross with Palm Unit Citation and the Army Good Conduct Medal (1st Award) for exemplary service from 13 July 1962 to 25 June 1965 and adding the medal to his DD Form 214 for the period ending 5 November 1973. 2. The Board further determined 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 upgrade of the applicant’s discharge from under other than honorable conditions to 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 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 15 July 1966 and in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provided that a Soldier who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier, or, where required, after referral, until final action by the court-martial convening authority. Commanders will ensure that a Soldier is not coerced into submitting a request for discharge for the good of the service. The Soldier will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the Soldier may elect to submit a request for discharge for the good of the service. The Soldier will sign a written request, certifying that he or she was counseled, understood his or her rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a Soldier who was discharged for the good of the service. However, the separation authority was authorized to direct an honorable or general discharge if such were merited by the Soldier's overall record during his or her current enlistment. For Soldiers who had completed entry-level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would be improper. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or for the good of the service. e. 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. 3. 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 Military Discharge Review Boards and Boards for Correction of Military/Naval Records 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, 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. 4. 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. a. 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. 5. Title 10, U.S. Code, section 1556, 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000555 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1