IN THE CASE OF: BOARD DATE: 27 October 2023 DOCKET NUMBER: AR20230002863 APPLICANT REQUESTS: reconsideration of his previous requests for upgrade of his under other than honorable conditions (UOTHC) discharge, and to appear before the Board via video/telephone. 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 16 August 1971 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 AC97-09604 on 29 April 1998 and ABCMR Docket Number AR20170016607 on 23 August 2019. 2. As new contentions, the applicant states he suffered from traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) as a result of his service in the Republic of Vietnam and he was ordered to perform tasks that he did not agree with. 3. The applicant enlisted in the Regular Army on 20 February 1969. Upon completion of initial entry training, he was stationed in Germany from 15 September 1969 until 6 June 1970. He was advanced to the rank/grade of specialist four/E-4 on 4 March 1970. 4. The applicant was honorably discharged on 13 March 1970 for the purpose of immediate reenlistment. He reenlisted on 14 March 1970 for a period of 3 years. 5. The applicant served in the Republic of Vietnam from 18 July 1970 until 26 July 1971. 6. His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time lost), he was reported as absent without leave (AWOL) on these periods: • 16 June 1969 – 17 June 1969 • 27 June 1971 – 30 June 1971 • 14 July 1971 – 18 July 1971 7. Court martial charges were preferred against the applicant on 19 July 1971, for committing the following offenses in violation of the Uniform Code of Military Justice (UCMJ): • one specification of, without proper authority, failing to go at the time prescribed to his appointed place of duty on 13 June 1971 • two specifications of, without proper authority, absenting himself from his appointed place of duty from on or about 27 June 1971 until on or about 1 July 1971 and from on or about 14 July 1971 until on or about 19 July 1971 • one specification of willfully disobeying a lawful order issued by a noncommissioned officer (NCO) on or about 13 June 1971 • one specification of, without proper authority, quitting his sentinel of the guard post on or about 10 June 1971 • one specification of wrongfully appropriating a 1/4 ton truck, property of the Army, of a value of about $3,200.00 on or about 26 June 1971 • one specification of lifting a loaded weapon against his superior NCO, to wit: a loaded M-79, on or about 9 June 1971 • one specification of wrongfully and willfully discharging a firearm under circumstances such as to endanger human lives, to wit: an M16A1 Rifle, on or about 9 June 1971 • one specification of wrongfully having in his possession one ounce, more or less, of habit forming narcotic drug, to wit: heroin, on or about 26 June 1971 • one specification of wrongfully communicating a threat to his superior NCO on or about 5 July 1971 8. The applicant’s service record is void of his separation packet and discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), to include his consultation with counsel, chain of command actions, and approval authority action. 9. The applicant's DD Form 214 shows he was discharged on 16 August 1971, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number was "246" [in lieu of trial by court-martial for the good of the service]. His characterization of service was UOTHC with reenlistment code 4. He was credited with completion of 2 years, 5 months, and 16 days of active service with 11 days of lost time due to AWOL. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate. 11. On 21 September 1977, the Army Discharge Review Board (ADRB) determined the applicant was properly discharged. Accordingly, his request under the Department of Defense Discharge Review Program (Special) was denied. 12. The applicant petitioned the ADRB for an upgrade of his discharge again. On 5 August 1981, he was informed that after careful review of his application, military records, and all other available evidence, the ADRB determined that he was properly discharged and denied his request. 13. The applicant petitioned the ABCMR for relief based upon his contention that he was young at the time he committed his offenses and felt he could not continue to do the Army any good. He also contended he was charged with more offenses than he actually committed. On 6 May 1998 the applicant was informed that the Board had considered his application under procedures established by the Secretary of the Army and denied his request. He was advised that he may request reconsideration only if he could present newly discovered relevant evidence that was not previously considered by the Board. 14. The applicant petitioned the ABCMR for reconsideration of his request. On 3 December 2019, he was informed that his request for relief was denied, and reconsideration of this decision would only be considered if he could present new evidence or argument. 15. On 13 April 2023, an Army Review Board Agency staff member requested the applicant provide medical documents that support his mental health issues of TBI and PTSD. He was afforded a 30-day opportunity to respond. To date, he has not replied. 16. 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. By regulation, applicants do not have a right to a hearing before the ABCMR. 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 is applying to the ABCMR requesting reconsideration of the Board’s previous denial of his request for an upgrade of his 16 August 1971 discharge characterized as under other than honorable conditions. He states: “Veteran had a TBI and PTSD and went Vietnam. Veteran was ordered to do tasks that he was did not agree with to.” 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 20 February 1969 and was discharged on 16 August 1971 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (12 April 1971): Discharge for the Good of the Service. The DD 214 states the applicant had 11 days lost under Title 10, United States Code, Section 972. It shows Service in Vietnam form 18 July 1970 thru 26 July 1971. d. This request was previously denied in full on 23 August 2019 (AR20170016607). Rather than repeat their findings here, the board is referred to the record of proceedings and detailed medical advisory for that case. There is no medical advisory in that ROP and no evidence liberal consideration polices were considered at that time. Thus, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. e. No medical documentation nor new documentation was submitted with the application. f. The applicant’s UCMJ violations as documented in the prior ROP: “Court martial charges were preferred against the applicant on 19 July 1971, for four specifications of without proper authority fail to go at the time prescribed appointed place of duty on 13, 27 June 1971 – 1 July 1971, 14 July 1971 – 19 July 1971, one specification of wrongfully having in his possession one ounce, more or less, of habit forming narcotic drug – heroin, one specification of wrongfully communicating to his superior noncommissioned officer, a threat to take care of him, or words to that effect, one specification of without proper authority quit his post of duty, one specification of wrongfully appropriate a 1/4 ton truck, property of the Army, one specification of leveling a loaded weapon against his superior noncommissioned officer, and one specification of wrongfully and willfully discharged a firearm under circumstances such as to endanger human lives.” g. Review of the applicant’s records in JLV shows that in 1999 he was diagnosed with schizoaffective disorder (depressive type) and PTSD due to his service in Vietnam. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? YES: 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? Partially: As there is a nexus between PTSD and difficulty with authority figures, self-medicating with illicit substances and/or alcohol, and avoidant behaviors, his PTSD mitigates his failures to repair, periods of absence without leave, wrongfully communicating to his superior noncommissioned officer, disrespect, and disobeying lawful orders. h. However, PTSD does not interfere with one’s ability to distinguish between right and wrong and act in accordance with the right. It therefore cannot mitigate applicant’s wrongful appropriation of a 1/4 ton truck, property of the Army, one specification of leveling a loaded weapon against his superior noncommissioned officer, and one specification of wrongfully and willfully discharging a firearm under circumstances such as to endanger human lives. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered applicant’s contentions, military record and regulatory guidance. The Board considered supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the severity of the misconduct and whether there was sufficient evidence of mitigating circumstances to weigh in favor of clemency determination. The Board noted the applicant’s prior period of honorable service, period of service and diagnosis of PTSD. After due consideration of the request, the Board determined that the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :xx :xx :xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20170016607, dated 23 August 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show the character of service as under honorable conditions. 12/4/2023 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 (USC), Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 5. 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. 6. 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. 7. 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, 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//