IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000609 APPLICANT REQUESTS: The applicant, the son of the deceased former service member (FSM), requests his under other than honorable conditions (UOTHC) discharge be upgraded. Additionally, he requests an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * FSM’s Certification of Death * Applicant’s Birth Certificate FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the FSM's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2000037706 on 14 September 2000. 2. The applicant states, in effect, his father pleaded previously to have his discharge changed to honorable. He has since passed away. The least the Armed Forces could do is to give the FSM a military burial. He was a kid forced to fight in a war that he didn’t want to. He suffered trauma from this war as well as exposure to Agent Orange. He is prepared to take his case to his Senator and the U.S. President. 3. On his DD Form 293, the applicant notes mental health as a contributing and mitigating factor in the circumstances that resulted in the FSM’s separation. 4. The FSM enlisted in the Regular Army on 26 August 1968. He served in the Republic of Vietnam from 7 July 1969 through 2 July 1970. He was honorably discharged on 29 March 1971, and was issued a DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) for this period of service. He was credited with 2 years, 6 months, and 29 days of net active service this period. He was awarded or authorized the Vietnam Service Medal, Vietnam Campaign Medal, the National Defense Service Medal, and an Expert Marksmanship Badge with rifle bar. 5. The FSM reenlisted in the Regular Army on 29 March 1971, in pay grade E-4. 6. Court-martial charges were preferred against the FSM on 6 May 1974, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with three specifications of going absent without leave from on or about 1 May 1971 until on or about 24 June 1973; from on or about 20 August 1973 until on or about 7 January 1974; and from on or about 21 January 1974 until on or about 25 April 1974. 7. The FSM's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 8. The FSM was discharged on 28 June 1974. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 10, with Separation Program Designator code 246 (discharge for the good of the service). He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He completed 5 months and 1 day of net active service this period, with a cumulative total of 1024 days of lost time. He was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Marksman Marksmanship Badge (M-16) * Sharpshooter Marksmanship Badge (M-14) * Overseas Service Bar (two) * Grenade Marksmanship Badge 1st Class 9. A review of the FSM’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 ending28 June 1974. These awards will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in block 24. 10. The FSM petitioned the ABCMR requesting upgrade of his UOTHC discharge. On 14 September 2000, the Board voted to deny relief and determined that the FSM had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. 11. The applicant provides the FSM’s death certificate showing that he died on 6 September 2022. 12. The FSM 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. 13. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. Applicant’s do not have a right to a hearing before the Board. 14. MEDICAL REVIEW: a. Applicant Requests: The applicant, the son of the deceased former service member (FSM), requests his under other than honorable conditions (UOTHC) discharge be upgraded. He contends the FSMs misconduct was related to Other Mental Health Issues. 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) The FSM enlisted in the Regular Army on 26 August 1968. He served in the Republic of Vietnam from 7 July 1969 through 2 July 1970; 2) Court-martial charges were preferred against the FSM on 6 May 1974, for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with three specifications of going absent without leave from on or about 1 May 1971 until on or about 24 June 1973; from on or about 20 August 1973 until on or about 7 January 1974; and from on or about 21 January 1974 until on or about 25 April 1974; 3) The FSM's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing; 4) The FSM was discharged on 28 June 1974 under the provisions of Army Regulation 635-200 Paragraph 10, discharge for the good of the service. c. The VA electronic medical record (JLV), ROP, and casefiles were reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s period of service. No military BH records were provided for review. A review of JLV showed the FSM does not have a SC disability. Records in JLV showed the FSM engaged the VA for BH-related service from April 2017 to January 2022 in the context of BH evaluation and treatment related to potential organ transplant (i.e., Kidney). BH evaluation dated 10 May 2017 showed the FSM was diagnosed with Insomnia. He did not meet diagnostic criteria for any other BH conditions, but it was noted that he endorsed depressive symptoms of anhedonia and feeling down at times, that he believed were secondary to a lack of sleep. The evaluator found that the FSM had no significant psychological contraindication to transplant. Encounter note date 26 September 2018 showed the FSM reported a history of depression with onset secondary to trauma he witnessed during military service. He reported nightmare, flashbacks, and problems coping. He reported having discussed the issue with a provider in the 1990s but had not addressed the issues since. The provider added a rule-out of PTSD. Encounter note dated 13 December 2019 showed the FSM reporting his most salient concern was his lack of sleep. He had reportedly come to terms with his pending transplant. Encounter note dated 20 April 2020 showed the FSM reported continued problems with sleep. He denied having any symptoms of depression. Records showed the applicant continued in outpatient treatment for four additional sessions, while awaiting a kidney transplant through September 2020. The FSMs only BH diagnosis reflected in the record was that of Insomnia. d. The applicant, the son of the deceased former service member (FSM), requests his under other than honorable conditions (UOTHC) discharge be upgraded. He contends the FSMs misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the FSM during service. Post-service records showed the FSM diagnosed with Insomnia. The FSM s misconduct characterized by multiple instances of going AWOL is not mitigated by his diagnosis of insomnia as going AWOL is no normal sequela of Insomnia, and the FSM did not have a condition that resulted in him being unable to differentiate between right and wrong and adhere to the right. As such, there is insufficient evidence to support an upgrade of the FSMs discharge characterization. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant had an experience or condition during his time in service. However, the condition did not mitigate his misconduct. 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 contends his misconduct was related to Other Mental Health Issues. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. A review of the records was void of any BH diagnosis or treatment history for the FSM during service. Post-service records showed the FSM diagnosed with Insomnia. The FSM s misconduct characterized by multiple instances of going AWOL is not mitigated by his diagnosis of insomnia as going AWOL is no normal sequela of Insomnia, and the FSM did not have a condition that resulted in him being unable to differentiate between right and wrong and adhere to the right. As such, there is insufficient evidence to support an upgrade of the FSMs discharge characterization. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the former servicemembers’ (FSM) military record, the Board found that relief was not warranted. The Board carefully considered the FSM’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 former service member’s military records and medical review, the Board concurred with the advising official finding insufficient evidence to support an upgrade of the FSMs discharge characterization. The Board noted, the medical opine finding there was sufficient evidence that the former service member had an experience or condition during his time in service. However, the condition did not mitigate his misconduct. During deliberation, the Board found FSM s misconduct characterized by multiple instances of going AWOL is not mitigated by his diagnosis of insomnia as going AWOL is no normal sequela of Insomnia, and the FSM did not have a condition that resulted in him being unable to differentiate between right and wrong and adhere to the right. 2. The Board agreed there was insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board determined the former service member(applicant) has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 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. 4. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be 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 to amend the decision of the ABCMR set forth in Docket Number AR2000037706 on 14 September 2000. 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 28 June 1974. As a result, amend his DD Form 214 by adding: * Delete the Vietnam Service Medal Add the following * Vietnam Service Medal with three bronze service stars * Vietnam Summer-Fall 1969 (9 June 1969-31October 1969) * Vietnam Winter—Spring 1970 (1 November 1969-30 April 1970) * Sanctuary Counteroffensive (1 May 1970 – 30 Jun 1970) * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. 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. 2. 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. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. c. Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR. The applicant must provide new relevant evidence or argument that was not considered at the time of the ABCMR's prior consideration. 3. AR 635-5, in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 4. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows: DAGO Number 8, dated 1974, awarded all units that served in Vietnam the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 5. AR 600-8-22 (Military Awards), currently in effect, states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States based on their qualifying service in Vietnam after 3 July 1965 through 28 March 1973; a bronze service star will be awarded for wear on the Vietnam Service Medal for the Soldier’s participation in each recognized campaign, including * Vietnam Summer-Fall 1969 (9 June 1969-31October 1969) * Vietnam Winter—Spring 1970 (1 November 1969-30 April 1970) * Sanctuary Counteroffensive (1 May 1970 – 30 Jun 1970) 6. 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. 7. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised post-traumatic stress disorder (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. 8. 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, 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. 9. 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, 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) AR20230000609 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1