IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230003222 APPLICANT REQUESTS: an upgrade of his Under Other Than Honorable Conditions (UOTHC) discharge to Honorable, or in the alternative, Under Honorable Conditions (General). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel brief and 17 enclosures (174 pages) * Weather Report * Department of Veterans Affairs (VA) letter * Letter from the applicant * Applicant's VA medical records * Extract from the 117th Congressional Record * Presidential Proclamation 4313 * Presidential Clemency Board memorandum * Department of Defense (DoD) Task Force on the Administration of Military Justice in the Armed Forces * Title 10, United States Code (USC), Section 1552a1 * Title 10, USC, Section 1553a * Title 32 of the Code of Federal Regulations (CFR), Section 724.112 * Military Law Review, Volume 100 * Under Secretary of Defense Memorandum, Subject: Guidance to Military Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) Regarding Equity, Injustice, or Clemency Determinations (aka the Wilkie Memo) * Project 100,000 paper written by * Project 100,000 paper written by, , and * Project 100,000 paper written by * Project 100,000 paper written by 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 AR20100010546 on 23 September 2010. 2. The applicant states: a. He was drafted into the Army in 1970. He had just graduated from Eastwood Junior High School to Central Tech High School. That same week after meeting his teachers, he received a letter from the Army informing him that he had been inducted into the Army. He was assigned to Fort Jackson, SC, for completion of Basic Combat Training (BCT). After training, he returned home and met his future wife. He spent about four weeks with her and then she found out she was pregnant. He was 18 years old, and she was 15. He received orders to report to Fort Lewis, WA, enroute to Vietnam. After serving in Vietnam, he was once again assigned to Fort Jackson, SC to complete his time in the Army. b. To the best of his knowledge, he was a good Soldier and never got into trouble. He was accused of stealing, which he did not do. He comes from a large family of four brothers and four sisters. So, it was very hard for him to do anything wrong and not get into trouble. After what he was told upon his discharge, it was hard for him to understand why he was denied Veterans benefits. This caused him to go into a depressed state of mind and he could not keep a job. His marriage and life were falling part, so he reached out for help from the Army. He wrote numerous letters to the Army Review Boards Agency but was repeatedly rejected. This caused him to develop post- traumatic stress disorder (PTSD). Because he did not know what to do, he lost everything including his wife, kids, and job. 3. Counsel states: a. Petition: (1) The applicant signed a three-year contract with the Army in May 1970 but was discharged under Chapter 10, for the good of the service, in December 1972,1 following his charge of conspiracy and larceny of a television, camera, and radio in concert with three others. The applicant took this discharge in lieu of Special Court Martial. As a result, the applicant received an Undesirable Discharge from the Army with character of UOTHC. However, the applicant respectfully requests that his discharge be upgraded to Honorable, or in the alternative, General under Honorable Conditions, for the following reasons. (2) First, the applicant's record and time of service show that he entered the service under standards for Project 100,000, a Vietnam Era Program that changed standards for admission into the Armed Forces to draft people who would otherwise not have been qualified to serve as substitutes for college kids with whom the war was unpopular, rendering his designation of Undesirable Discharge particularly unjust.2 Studies have shown that Project 100,000 service members suffered greater challenges in service, and as a result, faced greater discipline and the likelihood of unfavorable discharge than their counterparts.3 This disparity was recognized by President Gerald Ford, who issued guidance to DRBs to rule favorably when veterans meeting Project 100,000 criteria applied for discharge upgrades.4 (3) Second, the applicant's record shows, and contemporaneous supplemental evidence confirms, that he was the victim of discrimination and unlawful command influence, which unfairly prejudiced his discharge. During his training and deployment to Vietnam, the applicant’s record shows his service was rated excellent and he gained rank from E-1 to E-4.5 In the first ten months of 1972, when he processed to Fort Jackson; however, his commander Captain (CPT) served him with multiple Uniform Code of Military Justice (UCMJ) violations, dropped his service rank to unsatisfactory, declared him unfit for reenlistment, and ultimately presented him with the choice to leave the service with an undesirable discharge or face prison.6 Showing the prevalence of discriminatory practices by commanding officers in the military at that time, a contemporaneous Department of Defense (DoD) study found that minority service members like the applicant faced discrimination and unlawful command influence at greater rates than their counterparts, and recommended that minority service members receiving other than honorable discharges submit their cases for review and DRBs to modify their discharges appropriately.7 (4) Third, under modern military policy outlined in the Wilkie Memorandum, mitigating factors related to the applicant's record, including positive post-conviction conduct, and "whether the punishment, including any collateral consequences, was too harsh" weigh in favor of the applicant's discharge upgrade claim.8 First, the applicant acknowledges he fell in company with the individuals who committed the larceny for which he was discharged, but as a black service member in the deep south in 1970, he was limited in his choice of available social contacts. Recently returned from Vietnam and located hundreds of miles away from his family, friends, and community, the applicant associated with the few individuals he knew at Fort Jackson. Second, the applicant asserted at the time and now that he did not directly participate in or benefit from the conspiracy and larceny. Third, the applicant's record amply shows the harsh consequences following directly from his discharge. The applicant lost education benefits, was unable to gain employment, and attributes the breakdown of his marriage to his other than honorable discharge.9 b. Argument: (1) The applicant meets the criteria for Project 100,000 outlined in the Presidential Clemency Board Memorandum of 1 September 1975 ("Memorandum") and other records, recommending him for clemency as one of "those in Category IV who though unsuitable for military service, did to the extent they were able to give whatever service they could."14 Under the Memorandum's guidance, military boards should weigh mitigating factors of educational, economic, and intellectual barriers of Category IV men when considering their discharge upgrades, understanding that they were largely called into service to substitute for wealthier "college kids" with whom the Vietnam War was unpopular.15 The findings in this Memorandum, along with other studies and finding of the times,16 resulted in President Gerald Ford proclaiming a "neutral" Clemency Discharge, "neither honorable nor less than honorable" for servicemembers damaged and disadvantages by the policies surrounding the Vietnam War.17 The applicant's enlistment contract shows that he placed in Category IV, with an Armed Forces Qualification Test (AFQT) score of 16.22 The Memorandum explains that starting in 1965, Secretary of Defense McNamara altered the existing military practice of "only accepting those with scores of 30 and above on the AFQT," and that Category IVs "are those whose AFQT score is between 10 and 30."23 In the absence of Project 100,000, then the applicant's AFQT score would have prevented him from entering the Armed Forces. The applicant shares common characteristics of New Standards Men. The Memorandum notes that '"about 80 percent (%) of those in the project were engaged in five types of duty," including "Mechanical/equipment repair," and that Category IV men had a "reading level of a sixth grader and averaged 10.6 years of schooling."27 Reflecting this, The applicant's military records show he was trained for "Engineer Equipment Maintenance" and his highest grade in school completed was 10 years.28 A 1969 study of Project 100,000 found that servicemembers admitted into the military through the program were four times more likely to be black than their counterparts in the Armed Forces and were substantially less likely to have graduated high school.29 The Memorandum states “[l]ife in boot camp for many Category IVs was miserable …result[ing] in a higher rate of absence without leave (AWOL) offenses prior to being sent to Vietnam than would otherwise have occurred."32 Like most of Project 100,000, the applicant was quickly shipped to Vietnam and assigned to a combat unit.34 The Memorandum further notes that "[o]n their return to stateside, Category IV men found the military discipline which had been lax in Vietnam tightened up unbearably."35 The applicant's record shows that in the ten months after his return to Fort Jackson from Vietnam he was charged with seven AWOLs and unauthorized absences,36 and he testifies that he felt every time he turned around his commanding officer was charging him with another infraction. Here the applicant's commanding officer wrote in his record that the applicant "has demonstrated low intelligence in all areas of performance," that his "ability and intelligence seem to be limited."38 Finally, the applicant's discharge falls into a tragically common pattern for Project 100,000. Providing a clear example of this tragic pattern, the applicant received an Undesirable Discharge in Lieu of Court-Martial and testifies he did not commit the crime he was accused of, that he was frightened into taking the discharge, did not knowingly sign the waiver and never would have done so if he had understood its implications.40 (2) The applicant suffered discrimination and unlawful command influence. The applicant's records show his commanding officer at Fort Jackson, , discriminated against him and exercised undue command influence over his discharge, a finding supported by a large scale report of military practice during the time, commissioned by the DoD.42 Congress as well as the DoD found that discrimination and undue command influence caused many service members to be discharged unjustly with Undesirable Discharges during this period, and recommended that DRBs exercise lenience in granting appeals for discharge upgrades.43 Based on these concerns, less than a month after the applicant's undesirable discharge the Secretary of Defense issued guidance to the Armed Forces to "revise the structure" of the military justice system to provide for more procedural fairness for service members; an admonition that unfortunately came too late for the applicant and many other soldiers in his circumstances.45 (a) The applicant's personal record shows CPT discriminated against him and did not afford him fair process. Supporting this, the applicant's record until October 1971, when he processed to Fort Jackson, rated his conduct and efficiency excellent.46 However, the applicant reports that in December 1971, things changed after he asked CPT for leave to join his wife in Syracuse for the birth of their first child. CPT refused the request, and the applicant, desperate to be there for his family, went over CPT head to request leave from his warrant officer, and was approved. The applicant reports that following this leave he was delayed returning to base because of weather and tried to call base to inform his command of the reason for his delay. Despite this, on his return CPT charged him with an Article 15 for AWOL and absence from guard duty, penalizing him with a fine, extra duty, and restriction to the company area.47 Taking into account delays for holiday travel, looking at weather records from the dates at issue show that on 30 December 1971 there was snowfall of over four inches, and 2 January 1972 there was snowfall of three and a half inches, confirming the applicant's account of difficult weather prohibiting travel.48 The applicant recounts that after going over CPT head to request leave, he found himself bombarded with disciplinary charges; recollections his record amply supports. In fact, looking at the VA's 1978 decision to deny the applicant's request for a discharge upgrade and continue his education benefits, of the six infractions the VA cited as reasons for their decision, five took place during his final ten months in service when he was under CPT command at Fort Jackson.51 (b) DoD and Congressional records confirm systemic procedural unfairness and racism in the Armed Forces at the time of the applicant's discharge,62 and both the DoD and Congress concluded that the military justice system was in dire need of procedural reform. Unfortunately, the applicant was discharged before any of these changes could be felt, but the DoD's recommendation that DRBs appropriately modify unfavorable discharges in light of injustice is still available to help right the wrongs of the past. In a detailed study conducted across all branches of the Armed Forces in 1972, the year the applicant was discharged, the Task Force appointed by the DoD found a need for "racial justice and greater overall fairness in the military justice system."63 Among their findings, the Task Force determined that black Army servicemembers were punished for short term AWOLs more often and received more nonjudicial punishments as a result than their white counterparts, and that blacks were court-martialed at substantially higher rates than whites.64 Further, the Task Force's examination of enlisted males released from the Armed Forces in 1971 showed that "blacks receive a lower proportion of honorable discharges and a higher proportion of general and undesirable discharges than white with similar educational levels and aptitude."65 Compounding this disadvantage, the Task Force "became convinced that the black or Spanish-speaking enlisted man is often singled out for punishment by white authority figures where his white counterpart is not. There is enough evidence of intentional discrimination by individuals to convince the Task Force that such selective punishment is in many cases racially motivated."67 The Task Force also found that aside from race, the military justice system itself was flawed and in need of reform. Regarding nonjudicial punishments, it found service members generally did not appeal these out of a "feeling . . . that it is useless to do so" and "an allied feeling that it can provoke retaliation from the commander."68 In military judicial proceedings a similar result obtained because of "illegal command influence, or the appearance of such influence, in trials by court- martial"69 compounded by service members' belief "that defense counsel are not truly representing the interests of the accused, but rather are serving the commander."70 Finally, for those who had already suffered unfavorable discharges, the Task Force recommended "[a]ll persons who have received a discharge other than honorable, the basis for which may have been racial discrimination, be encouraged to submit their case for review; the DRBs and BCMRs receive and review cases submitted to them where racial discrimination was alleged to or may have been a precipitating factor in the ultimate awarding of the other than honorable discharge; and in such cases...the discharge be appropriately modified."74 Given the enormous powers of Command Influence arrayed in the hands of his commander, , like the thousands of other cases noted above the outcome of the applicant's court-martial was likely predetermined. Thus, accepting an undesirable discharge in lieu of court-martial was indeed his only alternative to confinement and a bad conduct discharge. (3) In accordance with the guidance provided in the Wilkie memorandum, the ABCMR should weigh mitigating factors, such as the applicant's testimony at the time of the alleged crime for which he was discharged, his blameless record before and since his military service, and the harshness of the consequences following from his Other Than Honorable discharge in favor of upgrading his discharge. Further, as a general policy the guidance provides that in determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs shall consider the following:…"It is consistent with military custom and practice to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in situations in which individuals have paid for their misdeeds."79 c. Conclusion: The applicant served his country under enhanced burdens of being a New Standards Man with a tenth-grade education and a minority member who was targeted by his commander for punishment in a military justice system that gave him no alternative but to accept the punishments he was given without raising a protest. These disadvantages render his Undesirable Discharge inequitable in light of guidance from the President, Congress, and DoD at the time, and in light of subsequent studies showing long term negative impacts suffered by service members in similar circumstances to the applicant's. Further, the applicant's records before and since his service show mitigating factors and that his Other Than Honorable Discharge had unduly harsh consequences that have followed him for over fifty years. According to recommendations at the time from the President, Congress, and DoD, and current guidance under the Wilkie memorandum, to rectify these injustices the applicant now respectfully requests his undesirable discharge be upgraded. d. Counsel provides the following documents in support of the brief, all of which are available in their entirety for the Board's consideration. * Climatological data for Syracuse Area, NY for December 1971 * A letter from the VA, dated 11 July 1978, informing the applicant that the nature of his discharge disqualified him from receiving requested benefits * A letter rendered by the applicant on 20 March 1980 requesting reconsideration of his request to be granted VA benefits * A summary of the applicant's VA medical records printed on 6 August 2019 * An extract from the Senate Congressional Record, dated 22 February 1973, addressing the need for reform in the military justice system * Presidential Proclamation 4313, dated 16 September 1974, announcing a program for the return of Vietnam era draft evaders and military deserters * Presidential Clemency Board memorandum addressing Category IVs and Project 100,000, dated 1 September 1975, which explains the rationale behind implementing the project and the adverse result it had on Category IV men * DoD Task Force Report on the administration of military justice in the Armed Forces, dated 30 November 1972, which addressed racism in the military and the military justice system * Title 10, USC, Section 1552a1, which states the Secretary of a military department may correct any military record of their department when the Secretary considers it necessary to correct an error or remove an injustice * Title 10, USC, Section 1553a, which states the Secretary concerned shall establish a board of review to consider requests for a change in discharge or dismissal or issuance of a new discharge for the purposes of clemency * Title 32 of the Code of Federal Regulations (CFR), Section 724.112 which explains the creation and implementation of the clemency discharge as a neutral discharge, neither honorable nor less than honorable * Military Law Review, Volume 100 which discusses the establishment of the U.S. Army Trial Defense Service * Under Secretary of Defense Memorandum, Subject: Guidance to Military DRBs and BCM/NRs Regarding Equity, Injustice, or Clemency Determinations (aka the Wilkie Memo) * Four publications wherein the authors discuss the origin of Project 100,000 and the adverse impact that it had upon men from deprived backgrounds 4. On 7 May 1970, the applicant enlisted in the Regular Army for a period of 6 years in the rank/grade of private/E-1. Upon completion of training, he was assigned to Fort Lewis, WA, enroute to Vietnam. 5. On 15 December 1970, the applicant accepted field grade nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for, on or about 2 December 1970, without proper authority, absenting himself from his unit and remaining so absent until on or about 16 December 1970. His punishment consisted of forfeiture of $65.00 per month for 2 months. 6. The applicant served in Vietnam from 22 December 1970 to 30 October 1971. While there, he accepted company grade NJP under the provisions of Article 15, UCMJ for the following reasons and received the punishments shown. a. On 14 March 1971, for failing to report to his guard post for his shift on 3 March 1971 and failing to report to his appointed place of duty at the time prescribed on 4 March 1971. His punishment consisted of reduction from private first class (PFC)/E-3 to private (PV2)/E-2 and forfeiture of $35.00. b. On 15 April 1971, for carelessly discharging a service rifle in a platoon formation on 12 April 1971. His punishment consisted of forfeiture of $30.00 and 7 days of extra duty. c. On 19 June 1971, for missing a company formation on 16 June 1971. His punishment consisted of forfeiture of $10.00. 7. The applicant was assigned to a unit at Fort Jackson, SC on 6 December 1971. 8. On 12 January 1972, the applicant accepted company grade NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 2 January 1972 and for absenting himself from his unit from on or about 2 January, remaining so absent until on or about 5 January 1972. His punishment consisted of forfeiture of $35.00; restriction for 7 days; and extra duty for 7 days. 9. On 21 July 1972, the applicant accepted company grade NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on 19 and 21 July 1972. His punishment consisted of forfeiture of $50.00; restriction for 14 days; and extra duty for 14 days. 10. On 26 September 1972, the applicant accepted company grade NJP under the provisions of Article 15, UCMJ, for absenting himself from his unit on 4 September 1972 and remaining so absent until 11 September 1972. His punishment consisted of forfeiture of $75.00, restriction for 14 days, and extra duty for 14 days. 11. A DD Form 458 (Charge Sheet) shows on 27 November 1972, court-martial charges were preferred against the applicant for violation of the UCMJ for conspiracy to commit larceny of a value over $100.00 and three specifications of larceny. 12. On 7 December 1972, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. He elected not to submit a statement in his own behalf. 13. The applicant underwent a pre-separation medical examination and mental status evaluation on 13 December 1972 and was determined to be qualified for separation proceedings. 14. The applicant's chain of command and the Staff Judge Advocate recommended approval of his request with an undesirable discharge UOTHC. 15. On 18 December 1972, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced to the lowest enlisted grade. 16. The applicant's DD Form 214 shows he was discharged on 21 December 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service. His Separation Program Number was "246" (in lieu of trial by court-martial) and his Reentry Eligibility codes were "1B, 3, 3A, 3B." His characterization of service was UOTHC. He was credited with completion of 2 years, 6 months, and 9 days of active service with time lost due to AWOL from 2-15 December 1970; 2-4 January1972; and 4- 11 September 1972. 17. 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. 18. The applicant petitioned the ABCMR for relief based upon his contention that a group of his friends got into trouble for an offense in which he did not participate, but he was accused along with them. He was a good Soldier and believes his punishment was too harsh. On 24 September 2010, the applicant informed that the Board had considered his application under procedures established by the Secretary of the Army and had denied his request. He advised him that he may request reconsideration only if he could present newly discovered relevant evidence that was not available to the Board when it was denied. 19. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 21 December 1972. These awards will be added to his DD Form 214 as administrative corrections and will not be considered by the Board, to show in block 24. 20. 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. 21. MEDICAL REVIEW: a. Background: The applicant is requesting that his Under Other Than Honorable Conditions discharge be upgraded to Honorable due to excessively harsh punishment and, per his attorney, “racial prejudice, unjust circumstances, and unjust practices.” b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory. * Applicant enlisted in the Regular Army on 18 May 1970. His MOS was Engineer Equipment Maintenance. He was deployed overseas to Vietnam from 22 Dec 1970 - 30 Oct 1971. His awards included the National Defense Service Medal, Vietnam Service Medal. Vietnam Campaign Medal and 1 O/S Bar. * Applicant was cited for AWOL episodes 02-16 Dec 1970, 02-05 Jan 1972, and 04-11 Sep 1972; at least 6 FTRs and “carelessly” discharging a weapon in formation (16 Jun 1971). * Applicant received court-martial charges for “conspiracy to commit larceny of a value over $100.00 and three specifications of larceny.” He opted to request a discharge from the Army in lieu of court-martial (07 Dec 1972). * The applicant’s separation packet was available for review. Also, the applicant’s service record includes his DD Form 214 (Report of Separation from Active Duty), which shows that the Army discharged the applicant “Under Other Than Honorable Conditions” on 21 Dec 1972. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), Personal Statement, his DD Form 214, as well as documents from his service record. The VA electronic medical record and DOD health record were reviewed through Joint Longitudinal View (JLV). d. This applicant asserted that excessively harsh punishment was a mitigating factor in his discharge. His service record and supporting documents included a Report of Mental Status Examination (13 Dec 1972) which indicated a normal presentation other than “suspicious behavior,” and that he met retention standards. On 18 Dec 1972, A Colonel with the *Staff Judge Advocate indicated, “company commander states on his personal history statement that ‘ability and intelligence seem to be limited. also displays lack of motivation.’” The supporting documents also indicated some specific references to racial discrimination and unjust treatment from both the legal brief and the company commander’s statements and punitive actions. His attorney noted, “’First, Mr. was part of Project 100,000 and shares many of the concerns motivating a clemency discharge under 32 C.F.R. § 724.112, as a result…Second, Mr. suffered discrimination and undue command influence which prejudiced his record and gave him no choice but to accept an undesirable discharge…Following his court martial charges, Cpt. was unflinching in his personal evaluation of the applicant, stating ‘he was a substandard soldier who should be barred…from the service.’” Based on this documentation in its entirety, there are some indicators the applicant experienced some mitigating conditions, as with depressed mood and trauma related stressors derived from both racial and intellectual discrimination that occurred during his time in service. e. Per the applicant’s VA EHR, he is not service connected for any medical or behavioral health conditions. An Internal Medicine Consult (13 Jul 2009) indicated, “patient is a pleasant 58-year-old male who presents for an Agent Orange registry exam. He has not been to a doctor for a physical exam in many years because he has no health insurance and very little money. He never thought he could come to the VA system. But right now he is only coming for the environmental exam as his eligibility is in question. He did serve in Vietnam for 18 months in 1971 to 1973. He was a heavy equipment operator and mechanic but was mostly in the Cameron Bay area, unsure about exposure. His main concerns are that he has night sweats, weight loss, frequent headaches, change in bowel function.” He also reported problems with depression and concentration. f. In summary, although he is not service connected for any behavioral health conditions, there is documentation he had been identified for depressive features and “agent orange” symptoms by a VA physician in 2009. After reviewing the application and all supporting documents, it is the opinion of this Agency Medical Advisor that there are some indicators of partially mitigating conditions (depressed mood, unspecified trauma stressors from racial and intellectual discrimination) that more likely than not contributed to the specific misconduct of his AWOL episodes, FTRs and accidental discharging of a rifle in Vietnam. It is well documented that racial and intellectual discrimination was a common occurrence during his time in service, particularly for those who fell under the Project 100,000 program. That said, these conditions are not associated with larceny and conspiracy to commit larceny. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge. Yes, applicant more likely than not experienced depressive symptoms and unspecified trauma stressors due largely to racial and intellectual discrimination which contributed to his AWOL episodes, FTRs and accidental discharging of a rifle while on active duty. (2) Did the condition exist or was experienced during military service? Yes, there are indicators he initially encountered depressive symptoms and unspecified trauma stressors as a result of racial and intellectual discrimination while on active duty. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes, it partially mitigates for his misconduct of AWOL episodes, FTRs and accidental discharging of a rifle as depressive mood and unspecified trauma stressors due to racial and intellectual discrimination are often associated with avoidant behavior, as with AWOL episodes, FTRs and accidental discharging of a rifle. That said, these conditions are not associated with larceny/conspiracy to commit larceny and therefore cannot be mitigated. BOARD DISCUSSION: 1. 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 counsel’s statement, 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. One potential outcome was to deny relief in concurrence with the advising official noting larceny is not a mitigation by PTSD. However, upon review through counsel of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official partial mitigation to opine that the applicant’s misconduct of AWOL episodes, FTRs and accidental discharging of a rifle as depressive mood and unspecified trauma stressors due to racial and intellectual discrimination are often associated with avoidant behavior, as with AWOL episodes, FTRs and accidental discharging of a rifle. 2. The Board under liberal consideration accounted for the applicant’s 18 months deployment in the Republic of Vietnam and found the minor infractions of his AWOL and failure to repairs as stressors based on the well documented evidence that racial and intellectual discrimination was a common occurrence during his time in service, particularly for those who fell under the Project 100,000 program. The Board noted the evidence in the record that shows the applicant had been identified for depressive features and “agent orange” symptoms by a VA physician in 2009. The Board agreed the larceny is not a mitigating factor for PTSD. However, the Board determined the applicant’s counsel demonstrated by a preponderance of evidence that in injustice occurred. The Board agreed there is sufficient evidence of in-service mitigating factors for the misconduct to grant relief. Therefore, the Board granted relief based on the determination that the discharge characterization was mitigated and should be upgraded to general under honorable conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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 the applicant a DD Form 214 for the period ending 21 December 1972 showing his characterization 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. ADMINISTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 21 December 1972. As a result, amend his DD Form 214 by adding: * Vietnam Counteroffensive Phase VII * Consolidation I * Republic of Vietnam Gallantry Cross with Palm Unit Citation Delete- Vietnam Service Medal Add – Vietnam Service Medal w/ 2 bronze service stars REFERENCES: 1. Title 10, 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 (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. 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. AR 600-8-22 states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States based on their qualifying service in Vietnam after 3 July 1965 through 28 March 1973; a bronze service star will be awarded for wear on the Vietnam Service Medal for the Soldier’s participation in each recognized campaign, including: * Vietnam Counteroffensive, Phase VII (1 July 1970 to 30 June 1971) * Consolidation I (1 July 1971 to 30 November 1971) * Consolidation II (1 December 1971 to 29 March 1972) 6. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows, per Department of the Army General Order (DAGO) Number 8, dated 1974, all units that served in Vietnam received the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 7. 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 post-traumatic stress disorder; 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. 8. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003222 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1