IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230005094 APPLICANT REQUESTS: upgrade of his undesirable discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 2 February 2023 * DD Form 256A (Honorable Discharge Certificate), 4 October 1966 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 4 October 1966 * DD Form 214 (Report of Separation from Active Duty), 8 January 1976 * Undesirable Discharge Certificate, 8 January 1976 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, in effect: a. He may have been suffering from post-traumatic stress disorder (PTSD) and mental issues during his military duty. This caused him to go out drinking on the weekend. He went back to duty but was dismissed. b. He served his country during the Vietnam War and is therefore requesting an upgrade. He is a proud Veteran and has learned from his experience. 3. The applicant provides: a. His DD Form 214 and Honorable Discharge Certificate for his initial period of service. b. His DD Form 214 and Undesirable Discharge Certificate for his subsequent period of service. 4. A review of his service records shows: a. On 27 September 1966, he was inducted into the Army of the United States. b. On 4 October 1966, he was honorably discharged from the Army of the United States in order to reenlist. His DD Form 214, 4 October 1966, shows he completed 8 days of net service for the period. c. On 5 October 1966, he enlisted in the Regular Army for a period of 3 years. d. On 8 April 1967, he accepted company grade nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for public drunkenness on 25 March 1967. His punishment consisted of restriction to the company area, for 14 days (suspended until 7 May 1967) and reduction to private 2/E-2 (suspended until 7 May 1967). He did not appeal this punishment. e. On 17 June 1967, he was promoted to specialist/E-4. f. On 2 August 1967, he accepted company grade NJP under the provisions of Article 15 of the UCMJ, for public drunkenness on 30 June 1967, and failing to have a valid pass on the same date. His punishment consisted of forfeiture of $39.00, restriction to the company area for 7 days and 7 days extra duty. That portion of forfeiture of $39.00 was suspended until 1 October 1967. He did not appeal this punishment. g. On 7 October 1967, he deployed with his unit to Vietnam and returned on 16 March 1968 after having served 6 months. h. On 10 July 1968, he accepted company grade NJP under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, U.S. Army Hospital, Fort Ord, from 5 July 1968 until 9 July 1968. His punishment consisted of reduction to private first class/E-3. He did not appeal this punishment. i. On 24 December 1968, he was promoted to specialist/E-4. j. On 24 April 1969, he accepted company grade NJP under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, from 21 April 1969 to 24 April 1969. His punishment consisted of forfeiture of $44.00 for 1 month and extra duty for 14 days. He did not appeal this punishment. k. Special Court-Martial Order Number 8 issued by Headquarters, 2d Battalion, 18th Artillery, Fort Lewis, shows he was found guilty of absenting himself from his unit, Service Battery, 2d Battalion, 18th Artillery, from on or about 5 May 1969 to 14 May 1969. He was sentenced to hard labor for 1 months and to be reduced to the grade/pay grade of private/E-1. The sentence was adjudged on 16 May 1969. On 16 May 1969, the Commanding Officer, 18th Artillery, approved the sentence. l. A DA form 3975 (Military Police Report) shows his status changed from present for duty to AWOL on 30 May 1969, to dropped from the rolls on 28 June 1969. He was apprehended by civil authorities on 8 September 1975 and he was transferred to control of Personnel Control Facility, Fort Ord, on 12 September 1975. m. On 17 September 1975, he underwent a medical examination at Silas B. Hays Army Hospital, Fort Ord. The examining physician noted he was in good health. n. On 23 September 1975, he underwent a Mental Status Evaluation. A DA Form 3822-R shows the examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness) and had no significant mental illness. The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. o. On 25 September 1975, the Commander, U.S. Army Personnel Control Facility, Fort Ord, advised him he was contemplating his elimination for AWOL of more than 1 year or more under the provisions of Army Regulation 635-200, Chapter 15, and advised him of his rights. He understood he had the right to consult with consulting counsel, to present his case before a board of officers, to submit statements in his own behalf, to be represented by counsel or to waive his rights in writing. He understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws, and that he may expect substantial prejudice in civilian life. p. On the same date, he acknowledged his rights and admitted to being AWOL in excess of one year, he waived consideration of his case by a board of officers, waived representation by counsel, he waived a personal appearance before a board of officers, and he elected to submit a statement in his own behalf. He understood that he may, up until the date the discharge authority ordered, directed, or approved his discharge, he may withdraw his waiver and request officer hear his case. q. On 25 September 1975, he provided a written statement in effect admitting he was AWOL from Service Battery, 2d Battalion, 18th Artillery, Fort Lewis from 30 May 1969 to 7 September 1975. In a second written statement he provided on the same day, he outlined the awards he received, noted he injured his thumb in an accident and was hospitalized in Vietnam and then transferred to Japan. r. On 25 September 1975, he was approved for excess leave. s. On 12 December 1975 and 16 December 1975, his intermediate commanders recommended approval of his discharge. His unit commander noted his service in Vietnam from 7 October 1967 to 16 March 1968. t. On 22 December 1975, the approval authority directed his discharge under the provisions of Army Regulation 635-200, Chapter 15 with an Undesirable Discharge and directed his reduction to the lowest grade. u. On 8 January 1976, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 15 with a characterization of service of under other than honorable conditions and a separation program designator of JKD. He completed 2 years, 11 months and 10 days of net active service with 8 days of prior active honorable service. He had 2304 days total lost time; 3 days lost from 21 April 1969 to 21 April 1969; 9 days lost time from 5 May 1969 to 13 May 1969; and 2292 days lost time from 30 May 1969 to 7 September 1975. He was granted 106 days of excess leave from 25 September 1975 to 8 January 1976. He was awarded or authorized: * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Rifle Bar * National Defense Service Medal v. On 11 April 1980, the Army Discharge Review Board denied his request to upgrade his undesirable discharge, finding it was both proper and equitable. 5. On 18 July 2023, the Director, Case Management Division, requested the applicant send medical documents supporting his issue of PTSD and other mental health issues and placed his case on hold for 30 days to give him an opportunity to respond. He did not respond. 6. In reaching its determination, the Board can consider the applicant s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 7. MEDICAL REVIEW: a. The applicant is requesting upgrade of his UOTHC discharge to under honorable conditions, general. He contends his misconduct was related PTSD. 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 5 October 1966; 2) He accepted NJP under provision of Article 15 of the UCMJ on 8 April 1967 for public drunkenness on 25 March 1967, and accepted NJP on 2 August 1967 for public drunkenness on 30 June 1967; 3) On 19 July 1968 he accepted NJP for being AWOL from 5 July 1968 to 9 July 1968, and he accept NJP on 24 April 1969 for being AWOL from 21 April 1969 to 24 April 1969; 4) Special Court-Martial Order Number 8 issued by Headquarters, 2d Battalion, 18th Artillery, Fort Lewis, shows he was found guilty of absenting himself from his unit, Service Battery, 2d Battalion, 18th Artillery, from on or about 5 May 1969 to 14 May 1969; 5) DA form 3975 (Military Police Report) shows his status changed from present for duty to AWOL on 30 May 1969, to dropped from the rolls on 28 June 1969. He was apprehended by civil authorities on 8 September 1975, and he was transferred to control of Personnel Control Facility, Fort Ord, on 12 September 1975; 6) On 25 September 1975, the Commander, U.S. Army Personnel Control Facility, Fort Ord, advised him he was contemplating his elimination for AWOL. On the same date, he acknowledged his rights and admitted to being AWOL in excess of one year; 7) On 8 January 1976, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, Chapter 15 with a characterization of service of under other than honorable conditions and a separation program designator of JKD. 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. Included in the applicant s casefile was a Mental Status Evaluation, dated 23 September 1975, that showed the applicant did not have a mental illness, and was psychiatrically cleared for administrative separation. Also included in the casefile was a Report of Medical Examination, dated 17 September 1975, that showed the applicant was deemed medically qualified for administrative separation. No other military BH-related records were provided for review. A review of JLV was void of any BH 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 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. 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 PTSD, and per liberal 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 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: After reviewing the application and all supporting documents, the Board found that relief was 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 applicant s statement, the frequency and nature of the misconduct, reason for separation and whether to apply clemency. One possible outcome was to deny relief. However, the Board noted the applicant s period of service, awards received and, in applying liberal consideration, determined that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :CBW : :RB GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :AMI : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 8 January 1976 showing his character of service as under honorable conditions (General). 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, United States 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 3. Army Regulation 635-200 (Personnel Separations Enlisted Personnel) in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 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 15 established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of absence without leave or desertion. Elimination action under the provisions of this chapter would not be taken in lieu of disciplinary action solely to spare an individual the penalties which could be imposed under the UCMJ. When absentees were returned to military control from a status of AWOL or desertion, the commander exercising general court-martial jurisdiction was authorized to direct discharge. The individual may be considered for discharge under this section when the unauthorized absence was continuous for 1 year or longer. An individual discharged under the provisions of this section would be furnished an Undesirable Discharge Certificate. 4. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 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/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. 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 based on 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. 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. 7. Section 1556 of Title 10, United States Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005094 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1