IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230001043 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 24 July 1972 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, there was five minutes left to board the plane and no attendant was present to take his ticket. He called out and no one came, it is not his fault no one took his ticket. 3. On his DD Form 214, the applicant notes post-traumatic stress disorder (PTSD) is related to his request; however, he did not provide any further information or medical documentation. 4. On 25 June 1970, the applicant was inducted in the Army of the United States for a 2-year service obligation. 5. On 6 August 1970, while in initial entry training, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for going absent without leave (AWOL) from on or about 2 August 1970 until 5 August 1970. His punishment included forfeiture of $29 for one month, 14 days extra duty, and restriction. 6. Upon completion of his training and award of military occupational specialty 57A (Duty Soldier), he was assigned to the Republic of Vietnam (RVN) and arrived on 23 December 1970. 7. On 27 March 1972, court-martial charges were preferred against the applicant, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with two specifications of being AWOL from his unit in the RVN from on or about 21 May 1971 until 2 August 1971, and from on or about 12 August 1971 until 27 March 1972. 8. On 31 March 1972, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He submitted the following statement in his own behalf: I [the applicant] Personnel Control Facility, wish to make the following statement concerning my application to resign for the good of the service. I was drafted into the Army in June of 70. I have received one Article 15 for a three- day AWOL while in basic training. I am now pending action on another AWOL charge. My father has been dead since I was nine years old. My mother has worked very hard since then to raise my sisters and myself. My mother is now getting old. She doesn’t make enough money to pay the bills we have. We are now in danger of not having any credit. My mother has no one to stay with her and help her if she needs it. I am the only male in the family. I now feel that it is my obligation to help my mother. For the above reason, I could not function well in the Army. It would be to the benefit of the service if I would be permitted to resign. Thank you for considering my case. Signed 9. On 4 April 1972, the applicant’s immediate commander recommended that he face a general court-martial and be eliminated from service. 10. On 13 June 1972, court-martial charges were again preferred against the applicant, for violations of the UCMJ. His DD Form 458 shows he was charged with being AWOL from his unit from on or about 14 May 1972 until 8 June 1972. 11. On 27 June 1972, the applicant’s Personnel Control Facility, commander recommended approval of his separation with an undesirable discharge. The commander cited the applicant’s previous request for discharge on 31 March 1972, for family problems and unauthorized absences. His intermediate commander concurred with the request on 30 June 1972. 12. On 7 July 1972, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial. He further directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate). 13. On 24 July 1972, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number 246 (for the good of the service). His service was characterized as UOTHC. He was credited with completing 1 year, 1 month, and 18 days of net active service this period, with 349 days of lost time. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal with one Bronze Star, Vietnam Campaign Medal with 60 Device, Overseas Bar, and two marksmanship badges. 14. The applicant 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. 15. 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. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge. The applicant asserts that PTSD 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 was inducted into the Regular Army on 25 June 1970. * On 6 August 1970, while in initial entry training, the applicant accepted nonjudicial punishment (NJP) for going AWOL from 2 August 1970 until 5 August 1970. * He served in Vietnam from 23 Dec 1970 to 7 May 1971 * On 27 March 1972, court-martial charges were preferred against the applicant. He was charged with two specifications of being AWOL from his unit in the RVN from on or about 21 May 1971 until 2 August 1971, and from on or about 12 August 1971 until 27 March 1972. * On 31 March 1972, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of AR 635-200, Chapter 10, for the good of the service. * The applicant was discharged on 24 July 1972 under AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial, with an UOTHC characterization of service. 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), though no data was available for review. Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. Applicant was attempting to return to his duty station/unit, and he asserts that there was five minutes left to board the plane and no attendant was present to take his ticket. He called out and no one came. He also asserts PTSD is a mitigating factor in his discharge. The applicants record shows that he was AWOL three additional times, for a significant amount of time, to include while deployed to Vietnam. At the time of his separation, the applicant did author a letter describing the hardships back home and his need to be with his family to help support them (with his obligation being to his mother, with his father being deceased and his mom raising his sisters alone). At the time, he indicated these stressors being the reason he could not “function well” in the Army. e. There were no military medical records provided to support PTSD as a mitigating factor, though that is to be expected given the era of service. The applicant’s electronic health record (EHR) through Joint Legacy Viewing (JLV) was not available (as the applicant did not appear to be in the system). The applicant did not provide any civilian/community care mental or physical health records, since his time in service. f. 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, per 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 mitigates his discharge. (2) Did the condition exist or experience occur during military service? Yes, applicant asserts PTSD (though does not specify a time frame) and records indicate he asserted stress/family hardship 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 a self-authored statement from his time in service indicates other stress/family hardship as a factor. 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 EHR 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. 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 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 Board noted, the advising official opined that there was no available evidence for review, beyond self-report, that the applicant had a mitigating condition, though this is not uncommon given the lack of EHR at that time, nor the length of time since his service. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct to weigh a clemency determination. 2. The Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 1 month, and 18 days of net active service this period, with 349 days of lost time. The Board agreed the 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. Therefore, the Board denied relief. 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: 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. 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 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. 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 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) AR20230001043 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1