IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230001400 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC94-08119 on 2 November 1994. 2. The applicant states: a. He stayed drunk for nearly 60 days before the military police came to get him. As a young Soldier, aged 22, he felt betrayed at the reception he was given when arriving back in the United States after having served his country in Vietnam for thirteen months. Around 1970, his platoon returned from Vietnam and upon arriving in Hawaii and in Los Angeles, CA, they were told not to disembark the plane for their own protection due to protesters of the Vietnam war actively protesting at the airport. In Fort Campbell, KY, they were lined up on the tarmac and drug dogs were brought out to check out all the servicemen. b. At the barracks a sergeant and a corporal who had never been in combat addressed them as though they were low lives. This was very disrespectful to them. They were told they were going to the airport to wash windows. The applicant stated he was not going to wash any damn windows and he told them he was leaving. He told his fellow brothers he was going out the gate and approximately, eighty of his fellow Soldiers left at the same time that he did. c. He spent forty-four days in a hospital living on baby food and lost twenty-seven pounds. He now realizes he handled this the wrong way and regrets what he should have handled differently at that time. 3. On his previous application, the applicant notes after he returned from Vietnam, he had a chemical dependency which affected his mental condition. 4. The applicant enlisted in the Regular Army on 20 November 1969 for 3 years. His military occupational specialty was 11B (Light Weapons Infantryman). 5. He applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 11 September 1970, for without authority absenting himself from his unit on or about 4 August 1970 until on or about 31 August 1970; his punishment included reduction to private/E-2, forfeiture of pay, restriction, and extra duty * 19 October 1970, for willfully disobeying an order on or about 18 October 1970; his punishment consisted of forfeiture of $32.00 pay 6. The applicant served in Vietnam from 3 December 1970 through 2 December 1971. 7. He was reported absent without leave (AWOL) on 26 August 1971 and dropped from the rolls as a deserter on 25 September 1971. 8. A Commander s Inquiry shows the applicant was assigned to Headquarters, U.S. Army Personnel Control Facility, Fort Knox, KY, and was dropped from the rolls. He again absented himself from his unit on 22 November 1971 and was subsequently dropped from the rolls. There was no known reason for his AWOL. 9. He was apprehended by civilian authorities on 23 December 1971 and returned to military control on 24 December 1971. 10. A Report of Medical History shows in: * Item 19 (Have you been a patient in any type of hospital?) August 1971 in 67th Evacuation Hospital, Vietnam, for broken jaw and May 1971 for broken nose * item 25 (Physician s Summary) [illegible] ailments in Vietnam 11. Court-martial charges were preferred against the applicant on 10 January 1972, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 26 August 1971 until on or about 1 November 1971 and from on or about 22 November 1971 to on or about 24 December 1971. 12. The applicant consulted with legal counsel on 14 January 1972 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial. In his request for discharge, he acknowledged her understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. By personal statement, the applicant stated he enlisted in the Army to go to Vietnam and fight. Upon return from Vietnam problems arose for which he felt he should be discharged from the service of the military. His son is staying with his older parents, his mother had deserted him completely. The last time he went AWOL he got a job so his father, mother, and son could have a decent Christmas. The Red Cross could verify this statement. He has a job waiting for him if he is discharged. He has nothing personally against the Army or its regulations. He feels that he has served his country well but now he must help his people and all he asks is that all things are taken into consideration. 13. The applicant's immediate commander recommended approval of the applicant's request for discharge in lieu of court-martial with his service characterized as undesirable. 14. The separation authority approved the applicant's request for discharge on 24 January 1972, in lieu of trial by court-martial. He directed that the applicant be reduced to the lowest enlisted grade and receive a DD Form 258A (Undesirable Discharge Certificate). 15. The applicant was discharged on 1 February 1972. His DD Form 214 shows he was discharged under the provisions of AR?635-200, with Separation Program Number 246, for the good of the service - in lieu of court-martial. His service was characterized as UOTHC. He completed 1 year, 9 months and 13 days of net active service, with 150 days of lost time. He was awarded or authorized the: Parachutist Badge, Vietnam Service Medal, Combat Infantryman Badge, and the Vietnam Campaign Medal with 1960 device. 16. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 17. On 16 November 1994, the applicant petitioned the ABCMR for upgrade of his characterization of service. The Board determined the applicant had not presented, and the records did not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law, and denied his application. 18. 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. 19. MEDICAL REVIEW: a. The applicant is requesting reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. He appears to contend his 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 applicant enlisted into the Regular Army on 20 November 1969. He served in Vietnam from 3 December 1970 through 2 December 1971; 2) He applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 September 1970, for without authority absenting himself from his unit on or about 4 August 1970 until on or about 31 August 1970 and again on 19 October 1970, for willfully disobeying an order on or about 18 October 1970; 3) He was reported absent without leave (AWOL) on 26 August 1971 and dropped from the rolls as a deserter on 25 September 1971; 4) He was apprehended by civilian authorities on 23 December 1971 and returned to military control on 24 December 1971; 5). Court-martial charges were preferred against the applicant on 10 January 1972, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 26 August 1971 until on or about 1 November 1971 and from on or about 22 November 1971 to on or about 24 December 1971; 6). The applicant consulted with legal counsel on 14 January 1972. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for the good of the service-in lieu of trial by court-martial; 7). The applicant was discharged on 1 February 1972. His DD Form 214 shows he was discharged under the provisions of AR?635-200, with Separation Program Number 246, for the good of the service - in lieu of court-martial. 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 time in service. No military BH records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a service-connected disability. No civilian BH records were provided for review. d. The applicant is requesting upgrade of his UOTHC discharge to honorable. He appears to contend his misconduct was related to Other Mental Health Issues. A review of the records was void of any BH diagnosis or treatment history for the applicant during or after service and he provided no documentation supporting his contention of Other Mental Health Issues. In absence of documentation supporting his assertion of Other Mental Health Issues, there is insufficient evidence his misconduct was related to or mitigated by Other Mental Health Issues, and insufficient evidence to support an upgrade of his current discharge characterization. Additionally, the applicant contention of Other Mental Health Issues appears to be related to a claim of chemical dependency, which, in absence of another BH condition, is not offered relief under liberal guidance. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence that the applicant had an experience or condition during his time in service that mitigated his misconduct. However, he contends his misconduct was associated with Other Mental Health Issues, and 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 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 applicant during or after service and he provided no documentation supporting his contention of Other Mental Health Issues. In absence of documentation supporting his assertion of Other Mental Health Issues, there is insufficient evidence his misconduct was related to or mitigated by Other Mental Health Issues, and insufficient evidence to support an upgrade of his current discharge characterization. Additionally, the applicant contention of Other Mental Health Issues appears to be related to a claim of chemical dependency, which, in absence of another BH condition, is not offered relief under liberal guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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 AC94-08119 on 2 November 1994. 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 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. AR 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. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Boards for Correction of Military/Naval 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. 4. 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 sexual assault or sexual harassment was unreported, or 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. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018, 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 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 grounds. 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) AR20230001400 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1