IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002050 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge; or alternately an under honorable conditions (general) discharge. Additionally, he requests an appearance via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with an undated self-authored statement * Excerpt of Service Treatment Records (six pages) * Support Letters (three) * Letter of Release of Information, daughter, dated 16 August 2023 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: a. He served honorably in Vietnam, and was awarded a Bronze Star for his service. He was severely injured after being struck by a Jeep going 65 miles per hour, on 13 November 1971, during his service. He was hit head on, thrown about 20 feet, and started having migraines and back pain. He also fell from a tree while working on duty. Due to his injuries, he requested medical attention, but never received proper medical help. He was blamed of trying to get out of duty. b. The physician concluded that since there were not visible deformities or broken bones exposed, he was healthy and medically fit to return to work. He was only provided pain pills, but the pain was intolerable. This made completing tasks very difficult. He was punished for insisting on medical help by being chaptered out of the service. He was wrongly accused of malingering and unjustly pushed out of service. c. He continues to suffer from severe migraines and back pain. His record has followed him and hindered opportunities throughout his life. Prior to these incidents, he never asked for medical care even when he was sick, because of the harassment and treatment Soldiers would receive. 3. On 2 April 1971, the applicant enlisted in the Regular Army for a 2-year service obligation. 4. On 31 August 1971, while still in initial entry training the applicant accepted non- judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for going absent without leave (AWOL) from his unit on or about 23 August 1971 until 30 August 1971. His punishment was forfeiture of $33 pay for one month. 5. Upon completion of training and award of military occupational specialty 11B (Light Weapons Infantryman), he was assigned to Schofield Barracks, Hawaii, and arrived on or about 28 September 1971. 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: * 2 February 1972, for being AWOL from his unit from on or about 25 January 1972 until 28 January 1972; his punishment included reduction to E-2 (suspended for 90 days) and forfeiture of $70 pay * 16 February 1972, for failure to go at the time prescribed to his appointed place of duty, on or about 13 February 1972; his punishment was reduction to E-2, forfeiture of $25 for one month, and seven days extra duty * 5 April 1972, for failure to go at the time prescribed to his appointed place of duty, on or about 1 April 1972; his punishment was reduction to E-1 (suspended for 180 days), seven days correctional custody, and forfeiture of $25 pay 7. The applicant provides excerpts of his service treatment records, that show: a. On 6 April 1972, the applicant was seen at the Battalion Dispensary for falling out of a tree and was referred to a higher level of care for tenderness in his upper back with and open wound that was cleaned and dressed. A subsequent exam showed he had bruised ribs and pelvis and complete radiological (X-rays) exams were completed. He was placed on quarters, received medication, and was sent to physical therapy. b. On 19 April 1972, a Clinical Record Cover Sheet, shows he was treated for an upper respiratory infection and returned to duty after two days of quarters. c. In April 1972, an emergency record visit shows the applicant was treated for being hit by an automobile. He was thrown 20 feet, and had multiple abrasions but no loss of consciousness. He was hospitalized overnight for observation. d. On 9 May 1972, he was seen at the Aid Dispensary complaining of not being able to sleep after the auto accident because of pain in left shoulder. He also complained of thoracic pain related to the accident three weeks earlier, he had been seen 10 times since 1 March 1972, and was suspected of malingering. 8. On 14 June 1972, before a special court-martial at Schofield Barracks, Hawaii, the applicant was found guilty of wrongfully and falsely making the signature of another Soldier on a check with the intent to defraud, on or about 29 April 1972. The court sentenced him to a reduction to E-1, confinement at hard labor for three months, and forfeiture of $100 pay for three months. The sentence was approved on 20 June 1972. 9. The available record is void of evidence the applicant served in the Republic of Vietnam. 10. On 20 September 1972, the applicant was seen at the U.S. Army Troop Medical Clinic, Fort Riley, Kansas, for lower back pain for the last four months. The physical exam and all x-rays where within normal limits. It was also noted he had been seen numerous times for back pain and a previous provider noted on 9 May 1972, he suspected malingering. 11. On 22 May 1973, 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 on or about 12 December 1972 until 13 December 1972 and from on or about 26 December 1972 until 21 May 1973. 12. On 29 May 1973, 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 was afforded the opportunity to submit a statement in his own behalf. 13. On 29 May 1973, the applicant’s chain of command recommended approval of his request for discharge. They further recommended an undesirable characterization of service. 14. On 29 June 1973, the separation authority approved the applicant's request for discharge for the good of the service - in lieu of court-martial. He further directed the applicant be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate). 15. The applicant was discharged accordingly on 19 July 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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, 7 months, and 7 days of net active service this period, with 253 days of lost time. His awards and decorations include the Vietnam Service Medal with 1 Bronze Service Star. 16. 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. 17. The applicant provides six pages of service treatment records as detailed above, a letter if release for his daughter, and three support letters [2 of which are in Spanish] attesting to his character as an honest person who served for four years in Vietnam. 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 Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS). The applicant requests discharge upgrade from ‘Under Conditions Other Than Honorable’ to ‘Honorable’ or ‘Under Honorable Conditions, General’. He indicated that ‘Sexual Assault/Harassment’ and ‘Reprisal/Whistleblower’ were related to his request. He stated that he sustained a back injury, a head injury and developed migraines when he was hit by a car; and he also fell from a tree while in service. b. The applicant’s record was summarized in in the ABCMR ROP. Of note, he entered active service 02Apr1971. His MOS was 11B Light Weapons Infantryman. He was discharged under provisions of AR 635-200 chapter 10 for the good of the service in lieu of trial by court-martial. He had previously undergone special court-martial proceedings for forging a signature on the check (29Apr1972). The charges preferred against him for the second court-martial (the basis for his discharge) included two instances of being AWOL (12Dec1972 to 13Dec1972 and (26Dec1972 to 21May1973). His service was characterized as Under Conditions Other Than Honorable. c. The most significant in-service medical issues are detailed below: On 06Apr1972, the applicant was seen after having fallen out of a tree striking the left posterior chest (his left back) and left iliac crest (left hip). He sustained a 15 cm superficial laceration over the left posterior chest. The exam showed tenderness in most of his (left) upper back and point tenderness at the angle of the 5th left rib. The exam also showed full left hip ROM. He was referred to physical therapy and he was prescribed heat therapy to the painful areas for 5 days if needed. Rib and iliac crest films were ordered to rule out fractures. He was given quarters for the day and no PT for a week. d. Also in April 1972, the applicant was seen at Schofield Emergency Room after he was hit by a car throwing him 20 feet. There was no loss of consciousness. He sustained multiple abrasions. He was admitted for observation due to blood being found in his urine. Two weeks later he was seen for back pain which interrupted his sleep as well as left shoulder pain. In a May 1972 Clinical Record, he was seen for upper thoracic back pain. The exam was normal: The spine was supple and without deformity and his gait was normal. The provider suspected malingering because the applicant had been seen in sick call 10 times since March 1st mostly in the first part of the week. His disposition was duty. In September 1972, he was seen for low back pain of 4 months duration. The physical exam was normal and previous x-rays were negative, another film was ordered that day. His disposition was duty. e. In the ARBA Medical Reviewer’s opinion, review of the available records failed to establish a cause-and-effect link between his physical injuries in service and the AWOL offences which led to his discharge. There were no in-service behavioral health records. Few records were available in JLV; however, the search did reveal that the applicant was service connected by the VA for Lumbosacral or Cervical Strain 0% and Impaired Hearing 0%. In a 20Jun2014 VA note, the alcohol, depression, MST, and PTSD screens were all negative. Although the applicant selected the boxes in section 11 of DD Form 149 indicating that ‘Sexual Assault/Harassment’ and ‘Reprisal/Whistleblower’ were related to his request, no information was presented concerning these issues. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance were considered; however, there was no documentation to support a behavioral health diagnosis at the time of his discharge and thus no diagnosis to consider with respect to mitigation of misconduct for the purpose of a discharge upgrade. Nevertheless, an upgrade to ‘General, Under Honorable Conditions’ or to ‘Honorable’ may be considered by the Board out of compassion, and/or time passed since discharge. His service in Vietnam and Bronze Medal recipient was noted on his DD 214. He participated in the 15th Campaign (presumably Vietnam) and was awarded NDSM but not VSM. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Not shown in the available record. (2) Did the condition exist, or did the experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A 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 the advising official finding the available records failed to establish a cause- and-effect link between his physical injuries in service and the AWOL offences which led to his discharge. There were no in-service behavioral health records. The applicant provided no post service achievements for the Board consideration for clemency. The Board found the letters of support noteworthy attesting to the applicant’s character. 2. The Board, however under liberal consideration, weighed the applicant’s awards and meritorious service but found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 7 months, and 7 days of net active service this period, with 253 days of lost time. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Therefore, relief was denied. 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 ? 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. ADMINISTRATIVE NOTES: N/A 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. 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. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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 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) AR20230002050 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1