IN THE CASE OF: 
BOARD DATE: 17 August 2023 
DOCKET NUMBER: AR20230001441 


APPLICANT REQUESTS:  Upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

DD Form 149 (Application for Correction of Military Record) 

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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states his discharge was unjust because he served for a year inVietnam. He got an Army Commendation Medal and a Purple Heart, and he did notwant to go back to Vietnam, so he went absent without leave (AWOL). His sergeantdied in his arms, and he had to return to the rice paddy to get out a Soldier who hadbeen wounded and was screaming and crying. Nobody else went to get him, so he did.

3.On his DD Form 149, the applicant notes post-traumatic stress disorder (PTSD) isrelated to his request, as a contributing and mitigating factor in the circumstances thatresulted in his separation.

4.On 29 April 1967, the applicant enlisted in the Regular Army for 3 years. Uponcompletion of training, he was awarded military occupational specialty 11B (LightWeapons Infantryman).

5.He served in the Republic of Vietnam from 26 September 1967 to 14 October 1968.

6.A review of the available service record indicates:

a.Special Orders Number 357, issued by Headquarters 9th Infantry Division, on23 December 1967, show the applicant was awarded the Combat Infantryman Badge. 
b.General Orders Number 1150, issued by Headquarters 9th Infantry Division, on5 March 1968, show the applicant was awarded the Purple Heart for wounds he received in connection with military operations against a hostile force on 4 February 1968. 

c.General Orders Number 2219, issued by Headquarters 9th Infantry Division, on10 April 1968, show the applicant was awarded the Army Commendation Medal with “V” Device, for distinguished service on 1 February 1968. While serving as a Driver with Company B, 3d Battalion, 60th Infantry, 9th Infantry Division; despite the deluge of enemy fire inflicting several hits on his vehicle, he continued to speed through the streets of My Tho to unload urgently needed supplies of ammunition and food, enabling friendly forces to rout the insurgents from the city. 

d.His DA Form 20 (Enlisted Qualification Record) shows in item 41 (Awards andDecorations) he was authorized the National Defense Service Medal, Combat Infantryman Badge, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Overseas Service Ribbon (2nd Award). 

7.Before a special court-martial at Dong Tam Base, Republic of Vietnam on 1 May1968, the applicant was found guilty of one specification of missing movement, on orabout 18 March 1968; one specification of disobeying a lawful command from hissuperior officer, on or about 18 March 1968; and one specification of disobeying a lawfulorder from his superior noncommissioned officer, on or about 18 March 1968. The courtsentenced him to confinement at hard labor for three months and forfeiture of $74.00pay per month for three months. The sentence was approved that same day.

8.Special Court-Martial Order Number 37, issued by Headquarters, 3d Battalion, 60thInfantry, on 16 May 1968, noted the applicant's sentence had been suspended for threemonths, effective 16 May 1968, at which time unless sooner vacated the unexecutedportion of the sentence would be remitted without further action.

9.Special Court-Martial Order Number 58, issued on 20 May 1968, noted theapplicant's sentence was set aside.

10.On 24 January 1969, the applicant accepted non-judicial punishment under Article15 of the Uniform Code of Military Justice (UCMJ), for going AWOL from on or about8 January 1969 until on or about 15 January 1969.

11.Before a special court-martial at Fort Campbell, KY on 4 August 1969, the applicantwas found guilty of one specification of being AWOL from on or about 31 May 1969 untilon or about 7 July 1969. The court sentenced him to confinement at hard labor for threemonths (suspended), forfeiture of $50.00 pay for three months, and reduction toprivate/E-1. The sentence was approved on the same date.
12.On 10 August 1969, the applicant was reported as AWOL a third time, andremained absent until on or about 25 April 1970.

13.Court-martial charges were preferred against the applicant on 13 May 1970 forviolations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged withgoing AWOL from on or about 11 August 1969 through on or about 25 April 1970.

14.The applicant consulted with legal counsel on or about 12 May 1970 and wasadvised of the basis for the contemplated trial by court-martial; the maximumpermissible punishment authorized under the UCMJ; the possible effects of anundesirable discharge; and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provisions of Army Regulation 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 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.He elected not to submit a statement in his own behalf.

15.On 14 May 1970, the applicant underwent a medical examination. He was deemedmedically qualified for separation. The physician noted that there were no reasonablegrounds for belief that the applicant was mentally defective, deranged, or abnormal. Apsychiatric examination was not deemed to be appropriate.

16.On 18 May 1970, the applicant's commander recommended approval of theapplicant's request for discharge, and further recommended an undesirable discharge.

17.Consistent with the chain of command’s recommendations, the separation authorityapproved the applicant's request for discharge in lieu of trial by court-martial on 22 May1970. He directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).

18.The applicant was discharged on 3 June 1970. His DD Form 214 (Armed Forces ofthe U.S. Report of Transfer or Discharge) confirms he was discharged under theprovisions of Army Regulation 635-200, paragraph10-5, with Separation ProgramNumber 246, for the good of the service. He was discharged in the lowest enlistedgrade and his service was characterized as UOTHC. He completed 2 years, 1 month,and 22 days of net active service this period with 348 days of lost time.

19.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge. Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

20.In reaching its determination, the Board can consider the applicant’s petition, hisarguments and assertions, and his service record in accordance with the publishedequity, injustice, or clemency guidance.

21.On 10 March 2023, the ABCMR staff requested that the applicant provide medicaldocuments to support his claim of mental health issues as a contributing factor in thecircumstances that resulted in his discharge. He did not respond.

22.MEDICAL REVIEW:

a.The applicant is requesting upgrade of his UOTHC discharge to honorable.  Hecontends his misconduct was related PTSD.   
b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 29 April 1967 and served in the Republic of Vietnam from 26 September 1967 to 14 October 1968; 2) Before a special court-martial at Dong Tam Base, Republic of Vietnam on 1 May 1968, the applicant was found guilty of one specification of missing movement, on or about 18 March 1968 and one specification of disobeying a lawful command from his superior officer, on or about 18 March 1968; 3) Before a special court-martial at Fort Campbell, KY on 4 August 1969, the applicant was found guilty of one specification of being AWOL from on or about 31 May 1969 until on or about 7 July 1969; 4) On 10 August 1969, the applicant was reported as AWOL a third time, and remained absent until on or about 25 April 1970; 5) Court-martial charges were preferred against the applicant on 13 May 1970 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with going AWOL from on or about 11 August 1969 through on or about 25 April 1970; 6) The applicant consulted with legal counsel on or about 12 May 1970. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of AR 635-200, Chapter 10 – in lieu of trial by court-martial; 7) On 18 May 1970, the applicant's commander recommended approval of the applicant's request for discharge, and further recommended an undesirable discharge; 8) The applicant was discharged on 3 June 1970 under the provisions of Army Regulation 635-200, paragraph10-5, with Separation Program Number 246, for the good of the service. 
c.The VA electronic medical record (JLV), ROP, and casefiles were reviewed.  Themilitary 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.  JLV was void of any records pertaining to the applicant. No civilian BH records were provided for review.   
d.The applicant is requesting upgrade of his UOTHC discharge to honorable.   Hecontends his misconduct was related to PTSD. 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 PTSD.  In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization.  
e.Based on the available information, it is the opinion of the Agency BH Advisor thatthere 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 PTSD, 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 thatmay excuse or mitigate a discharge? Yes.  The applicant contends his misconduct was related to PTSD. 
(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.The applicant is requesting upgrade of his UOTHC discharge to honorable.   He contends his misconduct was related to PTSD. 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 PTSD.  In absence of documentation supporting his assertion of PTSD, there is insufficient evidence his misconduct was related to or mitigated by PTSD, and insufficient evidence to support an upgrade of his current discharge characterization. 

BOARD DISCUSSION: 

1.The Board found the available evidence sufficient to consider this case fully andfairly without a personal appearance by the applicant.

2.The Board carefully considered the applicant's request, supporting documents,evidence in the records, a medical review, and published Department of Defenseguidance for liberal consideration of discharge upgrade requests. The Board consideredthe applicant's statement, his record of service to include deployment, the frequencyand 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 Army Review Boards Agency Behavioral Health Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding there being insufficient evidence indicating his misconduct was mitigated by PTSD.  Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust.  The Board concurred with the corrections described in Administrative Note(s) below. 


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: 

Other than the corrections addressed in Administrative Note(s) below, 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 otherwise insufficient as a basis for correction of the records of the individual concerned. 

Microsoft Office Signature Line...
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 NOTE(S):  A review of the applicant's record shows his DD Form 214 is missing his authorized decorations. As a result, amend the DD Form 214 by adding the following:  

•Purple Heart

•Army Commendation Medal with “V” device

•Vietnam Service Medal with four bronze service stars

•Republic of Vietnam Campaign Medal with Device (1960)

•Republic of Vietnam Gallantry Cross with Palm Unit Citation

•Combat Infantryman Badge

•National Defense Service Medal




REFERENCES: 

1.Title 10, U.S. Code, Section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensurethat an applicant seeking corrective action by ARBA is provided a copy of allcorrespondence and communications, including summaries of verbal communications,with any agencies or persons external to agency or board, or a member of the staff ofthe agency or Board, that directly pertains to or has material effect on the applicant'scase, except as authorized by statute.

3.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection 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 thepresumption 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 evidenceor 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. 

4.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel. The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

5.The Secretary of Defense directed the Service Discharge Review Boards (DRB) andService Boards for Correction of Military/Navy Records (BCM/NR), on 3 September2014, to carefully consider the revised PTSD criteria, detailed medical considerations,and mitigating factors when taking action on applications from former service membersadministratively discharged UOTHC and who have been diagnosed with PTSD by acompetent mental health professional representing a civilian healthcare provider inorder to determine if it would be appropriate to upgrade the characterization of theapplicant's service.

6.The Under Secretary of Defense for Personnel and Readiness provided clarifyingguidance to Service DRBs and Service BCM/NRs on 25 August 2017. Thememorandum directed them to give liberal consideration to veterans petitioning fordischarge relief when the application for relief is based in whole or in part on mattersrelating to mental health conditions, including PTSD, traumatic brain injury, sexualassault, or sexual harassment. Standards for review should rightly consider the uniquenature of these cases and afford each veteran a reasonable opportunity for relief even ifthe mental health condition was not diagnosed until years later. Boards are to giveliberal consideration to Veterans petitioning for discharge relief when the application forrelief is based in whole or in part on those conditions or experiences.

7.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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 andprinciples 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 ofservice 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.  
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