IN THE CASE OF: BOARD DATE: 21 September 2023 DOCKET NUMBER: AR20230000981 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), with a self-authored statement dated May 22 * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Form 20-10206 (Freedom of Information Act (FOIA) or Privacy Act Request), dated 15 November 2022 * Self-authored Statement * Resume * Character Support Letters (7) * Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 26 January 1971 and 19 April 1973 * Army Review Boards Agency, Case Management Division, Request for Supporting Medical Documentation, dated 23 May 2023 * Applicant’s Response with 51 pages of mental health treatment records 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, in effect: a. He was born into a legacy of military men; his father, siblings, and uncles all served honorably. His undesirable discharge has bothered him mentally since 1973 and affected his family relationship. Enlisting and serving at 17 was the most exciting adventure of his life. He served from 1970 through 1973 with much enthusiasm, family pride, and patriotism. The first eight months he was a decent Soldier and liked his job. b. Once he landed in Vietnam things changed. He was a young impressionable 18- year-old, he got mixed up with the wrong group, and started doing drugs to quell his fear of war. He remembers lots of red alerts and an enemy Soldier being tied to a cannon. The racism was also nearly unbearable. c. It took him years to forgive himself and become a productive member of society, he learned from his mistakes. His intention was to serve honorably, and he wanted his family to be proud of him. He has tried to live as an example despite having gone through hard times. He is a good man who survived many life lessons and is deserving. He completed an anger management class through the VA, advanced individual training as a Supply Clerk, and retired after 30 years and 9 months with the Chicago Transit Authority. 3. On 28 April 1970, the applicant enlisted in the Regular Army for a 3-year service obligation, at the age of 17 years, 4 months and 1 day. Upon completion of his training and award of military occupational specialty 76A (Supply Clerk), he was assigned to Germany and arrived on 16 September 1970. He was honorably discharged on 25 January 1971 for immediate reenlistment; the DD Form 214 he was issued shows he was credited with completing 8 month and 28 days of net active service. 4. On 26 January 1971, the applicant reenlisted in the Regular Army for a 3-year service obligation. On 26 February 1971, he departed Germany enroute to the Republic of Vietnam (RVN), and he arrived on 8 April 1971. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following offenses: a. On 24 August 1971, for failing to go at the time prescribed to his appointed place of duty on or about 21 August 1971, and for being disrespectful in language to his superior noncommissioned officer (NCO)) on or about 20 August 1971. His punishment included reduction to E-2 and forfeiture of $40. b. On 23 November 1971, for two specifications of being absent without leave (AWOL) from on or about 16 September 1971 until 11 October 1971; and from 0945 hours, 11 October 1971, until 1345 hours on 11 October 1971; and for one specification of failing to go at the time prescribed to his appointed place of duty on or about 3 November 1971; there were additional violations, but the continuation sheet is not available for review. His punishment included forfeiture of $72.00 for two months. 6. On 21 December 1971, he departed the RVN enroute to Fort Ord, CA. 7. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ for the following offenses: * on 31 March 1972, for being AWOL from his unit at Fort Ord, CA on or about 15 March 1972 until 28 March 1972; his punishment included an oral reprimand, 14 days restriction, and 14 days extra duty * on 9 May 1972, for being AWOL from on or about 1 May 1972 until 5 May 1972; his punishment included reduction to E-1 (suspended), forfeiture of $100 for two months (suspended), and 30 days extra duty 8. On 15 September 1972, the applicant was convicted by special court-martial of two specifications of being AWOL from on or about 18 July 1972 until 7 August 1972; and from on or about 9 August 1972 until 29 August 1972. His sentence included reduction to E-1, and forfeiture of $100 for one month. The sentence was approved and ordered duly executed on 19 September 1972. 9. On 23 March 1973, the applicant underwent a separation examination. The supporting documentation shows he noted he was in good health with no complaints. Subsequently the examining physician found him qualified for separation. 10. The applicant's separation packet containing the specific facts and circumstances surrounding his administrative discharge is not available for review. However, his record does contain Special Order Extract Number 95, issued by Headquarters, 1st Infantry Division (Mech) and Fort Riley, Fort Riley, KS on 17 April 1973, which shows he was ordered to be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, for misconduct – unfitness – frequent incidents of a discreditable nature with military authorities. The order further shows he would receive a DD Form 258A (Undesirable Discharge Certificate) on 19 April 1973. 11. On 19 April 1973, Headquarters, 1st Infantry Division (Mech) and Fort Riley, Fort Riley, KS, Assistant Adjutant issued a Constructive Notice of Discharge noting the applicant was being separated in an AWOL status. The applicant was subsequently separated the same day, his DD Form 214, shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5a(1), with Separation Program Number 28B [unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities]. His service was characterized as UOTHC. He was credited with1 year, 6 months, and 3 days of net active service this period, with 261 days of time lost. 12. The applicant provides the documents listed above for consideration, which included the following: * Résumé listing his education, certificates and licenses, employment, honors and awards, military service, and references * Letters of support attesting to his character as a great father despite him being addicted to drugs and becoming sober to be a better person; he has a good heart and is a hero to his family; reliable, efficient, responsible, honest, trustworthy, courteous, and dependable; patient and kind; a great friend and confidant * Response to the agency’s request for supporting medical documents, with 51 pages of mental health treatment records and a medications list 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. 14. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He contends other mental health condition mitigates 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 RA on 28 April 1970 and reenlisted on 26 January 1971. * Applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice: * on 24 August 1971, for failing to go at the time prescribed to his appointed place of duty on or about 21 August 1971, and for being disrespectful in language to his superior noncommissioned officer (NCO) on or about 20 August 1971 * on 23 November 1971, for two specifications of being absent without leave (AWOL) from on or about 16 September 1971 until 11 October 1971; and for one specification of failing to go at the time prescribed to his appointed place of duty on or about 3 November 1971 * on 31 March 1972, for being AWOL from his unit at Fort Ord, CA on or about 15 March 1972 until 28 March 1972 * on 9 May 1972, for being AWOL from on or about 1 May 1972 until 5 May 1972 * On 15 September 1972, the applicant was convicted by special court-martial of two specifications of being AWOL from on or about 18 July 1972 until 7 August 1972; and from on or about 9 August 1972 until 29 August 1972. * The applicant was discharged on 19 April 1973 while on AWOL status. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 13, paragraph 13-5a(1), with Separation Program Number 28B [unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities]. His service was characterized as UOTHC. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, DD Form 149, his ABCMR Record of Proceedings (ROP), two DD Forms 214, self-authored letter, resume, mental health treatment records, character support letters (7) and documents from his service record and separation packet. 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. Due to the period of service, no active-duty electronic medical records were available for review. However, the applicant submitted documentation from his time in service and a medical examination dated 23 March 1973, completed as part of his separation process was included. The exam indicates that the applicant endorsed symptoms of depression and anxiety. e. The applicant is not service-connected, likely due to the characterization of his discharge. However, he started receiving services via the VA in March 2021. A psychiatric diagnostic evaluation in his VA electronic medical record, dated 02 March 2022, indicates the applicant has a history of anxiety, chronic stress, and substance use disorder. During his diagnostic evaluation, the applicant reported developing fearfulness due to experiences in the military. The applicant reported witnessing "race riots" on the base where he encountered brutal physical fights; experiencing "red alert sirens" when the whole base had to be ready/prepared for a potential incoming attack; reported feeling scared and "petrified" by hearing loud artillery fire; reported experiencing nightmares about the body of a Vietnamese soldier hanging from a tank that was brought onto the base, as an enemy capture, and paraded around the base; and nightmares about snipers in Vietnam. The applicant was diagnosed with Trauma and Stressor Related Disorder and Anxiety Disorder, Unspecified, since he did not meet full diagnostic criteria for PTSD but evidenced signs and symptoms consistent with trauma. In addition, the applicant reported his son died via suicide in 1993 and it continues to impact him, resulting in feelings of guilt and helplessness. The applicant was treated with group therapy and medication management via the VA. f. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence that the applicant had a behavioral health condition during military service that would mitigate his discharge. 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 a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes, the applicant experienced traumatic incidents while in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. There is medical documentation at the time of his discharge from military service that the applicant endorsed symptoms of depression and anxiety. The applicant continued to struggle post-military service with chronic symptoms, comparable to PTSD, related to his military service, and developed a substance abuse disorder. In his most recent evaluation by the VA, the applicant was diagnosed with Trauma and Stressor Related Disorder and Anxiety Disorder, Unspecified, since he did not meet full diagnostic criteria for PTSD but evidenced signs and symptoms consistent with trauma. Given the nexus between trauma/anxiety and avoidance, his FTR and AWOL are mitigated by his behavioral health condition. In addition, there is a natural sequala between trauma and difficulty with authority which mitigates his being disrespectful in language to his superior noncommissioned officer (NCO). BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct being mitigated by a behavioral health condition. The Board also found clemency to be appropriate based on the evidence of post-service achievements and letters of support provided by the applicant. Based on a preponderance of evidence, a majority of the Board determined partial relief is warranted and the applicant’s character of service should be changed to under honorable conditions (general). The member in the minority determined full relief is appropriate and determined his character of service should be changed to honorable. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx : : GRANT FULL RELIEF : :xx :xx 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 his DD Form 214 for the period ending 19 April 1973 to show his character of service as under honorable conditions (general). 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 an honorable character of service. 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. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-5(a), as then in effect, provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted, an undesirable (UOTHC) discharge was normally considered appropriate. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. 5. 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. 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, 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) AR20230000981 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1