IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002854 APPLICANT REQUESTS: the spouse of a former service member (FSM) requests, in effect, an upgrade of her husband’s under other than honorable conditions (UOTHC) discharge to honorable, and an explanation of the entry “Benefits of Honorable Discharge” in Item 25 (Education and Training Completed) of his DD Form 214 (Armed Forces of the United States – Report of Transfer or Discharge), for the period ending 30 July 1970. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * Table of Contents, undated * Marriage Certificate, * Death Certificate, * DD Form 214, for the period ending 24 June 1968 * DD Form 214, for the period ending 30 July 1970 * Application for Department of Veterans Affairs (VA) Benefits, undated * Decision letter, VA, dated 6 May 2022 * VA Form 20-0995 (Decision Review Request; Supplemental Claim), dated 8 September 2022 * Decision letter, VA, dated 26 October 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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. Her husband was stationed in Camp Page, Korea. The VA recognizes the use of Agent Orange in the Korean demilitarized zone from 1 April 1968 to 31 August 1971. Her husband was there during that time. She has been denied widow benefits from the VA due to her husband’s UOTHC discharge, even though her husband’s DD Form 214 states in Item 25 “Benefits of Honorable Discharge.” b. He was absent without leave (AWOL) for a period of time because he was detained in a civilian jail for possession of “speed.” It was a different time then, and he was only 19 years old. c. Her husband was diagnosed with type 2 diabetes, coronary artery disease, and chronic kidney disease. None of these diseases run in his family. She believes these conditions were related to Agent Orange exposure. Because of his failing health, they had to utilize their 401k just to live. She has struggled financially and believes she is entitled to compensation. 3. The FSM enlisted in the Regular Army on 1 March 1967 for a 3-year period. Upon the completion of initial entry training, he was awarded military occupational specialty 11B (Infantryman). His DD Form 214 shows he was honorably discharged for the purpose of immediate reenlistment on 24 June 1968. He was credited with 1 year, 3 months, and 21 days of net active service, with 3 months and 21 days of service in the Republic of Korea. 4. The FSM reenlisted in the Regular Army on 25 June 1968 for a 6-year period. The highest rank he attained was specialist/E-4. 5. Special Court-Martial Order Number 33, Headquarters, 1st Battalion, 9th Infantry, 2nd Infantry Division, APO San Francisco, 96224, show the FSM was found guilty of two specifications of being AWOL, on or about 8 January 1969 to on or about 30 January 1969 and on or about 31 January 1969 to on or about 13 February 1969. His sentence included confinement at hard labor for six months and forfeiture of $73.00 pay per month for six months. Only so much of the sentence which provided for confinement at hard labor for three months and forfeiture of $73.00 pay per month for three months was approved and order duly executed on 28 February 1969. 6. The FSM accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice, on four occasions, for the following offenses: a. On 16 June 1969, for the violation of a Division Regulation, on or about 13 June 1969. His punishment consisted of an oral reprimand. b. On 19 June 1969, for two specifications of failure to go to his appointed place of duty, on or about 19 June 1969. His punishment consisted of an oral reprimand. c. On 11 July 1969, for two specifications of failure to obey a lawful order, on or about 10 July 1969 and on or about 11 July 1969. His punishment consisted of forfeiture of $89.00 pay per month for two months, 45 days of extra duty, and 45 days of restriction. d. On 13 October 1969, for being AWOL, from on or about 11 October 1969 until on or about 12 October 1969. His punishment consisted of reduction to private/E-2, forfeiture of $29.00 pay, 14 days of extra duty, and 14 days of restriction. 7. The FSM was tried and convicted by civilian authorities on 10 April 1970 for possession of dangerous drugs. He was sentenced to four months confinement in the El Paso County Jail. 8. The FSM was notified on 11 May 1970 of his immediate commander's intent to initiate separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct [Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion]), by reason of conviction by a civil court. 9. On that same date, the FSM acknowledged receipt of the proposed separation notification. He waived consideration of his case by a board officers and representation by counsel. He further acknowledged understanding that he may be deprived of many rights and benefits as a Veteran under both Federal and State law, and he may encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his own behalf. 10. The FSM’s immediate commander formally recommended his separation from service on 23 June 1970, under the provisions of Army Regulation 635-206, by reason of misconduct. The intermediate commanders concurred with the recommended action and further recommended the issuance of an Undesirable Discharge Certificate. 11. The separation authority approved the recommended discharge on 21 July 1970, and further directed the FSM be reduced to the lowest enlisted rank and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. The FSM was discharged on 30 July 1970, under the provisions of Army Regulation 635-206, by reason of conviction by a civil court. His DD Form 214 confirms his service was characterized as UOTHC, with separation program number 284 and reenlistment code RE-3. He was credited with 2 years, 4 months, and 9 days of total active service, with 1 year, 1 month, and 5 days of service in the Republic of Korea. Item 25 (Education and Training Completed) contains the entry “Benefits of Honorable Discharge.” 13. A DA Form 20 (Enlisted Qualification Record), Item 28 (Specialized Training) shows the FSM completed the training “Benefits of Honorable Discharge” on 8 September 1969. 14. Regulatory guidance, in effect at the time, provided that an undesirable discharge was normally considered appropriate for members separated by reason of conviction by a civil court. 15. The applicant provides the following: * her marriage certificate to the FSM, * her husband’s death certificate, * multiple applications for various VA benefits, to include survivors’ pension, a Presidential Memorial Certificate, burial benefits, and a U.S. flag for burial purposes * a VA Form 20-0995, dated 8 September 2022, requesting a review of the VA’s decision * two letters from the VA, dated 6 May 2022 and 26 October 2022, denying her request for benefits 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant’s widow is applying to the ABCMR requesting clarification of items on her late husband’s DD 214. She states: “I am requesting clarification relating to the information on my late husband’s DD Form 214. Block 13a indicates his character of service of "Under Conditions Other Than Honorable." However, "Benefits of Honorable Discharge" is indicated in block 25 [Education and Training Completed]. I have been continually denied survivor benefits from the VA as a result of block 13a only. I am requesting an explanation for the information in block 25. What are my "honorable benefits" as a surviving spouse? The information in blocks 13a and 25 are contradicting statements that are excluding me from surviving spouse benefits from the Department of Veterans Affairs.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the Regular Army on 25 June 1968 and was discharged under conditions other than honorable on 30 July 1970 under the provisions provided in AR 635-206, Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion). His separation program number of 284 denotes “Misconduct/convicted or adjudged a juvenile offender by a civil court during current term of active military service.” d. Submitted documents show the applicant has recently been twice denied her claims for Veterans Benefits Administration survivor benefits of “dependency and indemnity compensation (DIC), death pension and accrued benefits.” e. A 28 February 1969 Special Court Martial Order shows the applicant pled guilty to and was found guilty of two periods of absence without leave (AWOL): 8-30 January 1969 and 31 January – 13 February 1969. He received Article 15’s for storing 60 rounds of ammunition in four (4) magazines in his footlocker, three episodes of failure to repair, a failure to prepare his equipment for inspection with failure to obey the order of a commissioned officer to do so replying “it’s ridiculous,” f. On 10 April 1970, the applicant was convicted in a civilian court in the county of , of possession of amphetamine and was sentenced to incarceration at the El Paso County Jail with hard labor for four months. g. On 11 May 1970, his company commander notified him of his “receipt of correspondence recommending that you be discharged from the military service under the provisions of paragraph 22, AR 635-206 (Conviction by Civil Court). h. The Commanding General of the 5th Infantry Division and Fort Carson approved this discharge with the directive he be separated with an “Undesirable Discharge Certificate” and he be reduced to Private E-1 under provisions in para 7-30 of AR 600- 200 (Enlisted Personnel Management System). i. No medical documentation was submitted with the application and the applicant does not have a record in JLV. j. There is no probative evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. k. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a medical condition is unwarranted. 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 no probative evidence the FSM had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. The Board determined there is insufficient evidence of in-service mitigating factors to overcome the misconduct that would merit a discharge upgrade based on a medical condition. 2. The Board noted, the entry “Benefits of Honorable Discharge” item 25 (Education and Training Completed) as shown on the FSM’s DD Form 214 pertains to his successful completion of his periods of training whereas he received a DD Form 214 with an honorable discharge for the period ending 24 Jun 1968. However, during deliberation, the Board determined the applicant service record did not reflect he was awarded the overseas service ribbon, or the Army Good Conduct Medal (1st award) and his record shows he received "excellent" conduct and efficiency ratings throughout his service for the period of 1 March 1967 to 24 June 1968. Based on this the Board granted partial relief for correction of the applicant’s record to show the award of the Army Good Conduct Medal and the overseas service ribbon. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X 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 awarding him the Army Good Conduct Medal (1st Award) for exemplary service from 1 March 1967 to 24 June 1968 and adding the medal to his DD Form 214 for the period ending 24 June 1968 and the overseas service ribbon. 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 upgrade of her husband’s under other than honorable conditions (UOTHC) discharge to honorable. 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, USC, 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. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents furnished to each individual being separated from the Army. It established standardized procedures for the preparation and distribution of these documents. Section III provided the instructions for the preparation of the DD Form 214. Item 25 included entries for service schools, installation training courses, military correspondence courses, and off-duty courses completed successfully during the period covered by the DD Form 214. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. This regulation provides 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. 5. Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VI, paragraph 33 (Conviction by Civil Court) of this regulation prescribes the standards and procedures for processing cases of individuals who, during their current term of active military service, have been initially convicted or adjudged juvenile offenders by a domestic court of the United States or its territorial possessions, or convicted by a foreign tribunal. If discharge is desired and the individual is not physically in the custody of the civil authorities, a recommendation for discharge may be submitted to Headquarters, Department of the Army. It provided that an undesirable discharge was normally considered appropriate for members separated under this regulation. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) 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, BCM/NRs 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) AR20230002854 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1