IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20230003438 APPLICANT REQUESTS: an upgrade of his characterization of service from "under conditions other than honorable" to "honorable." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 13 December 2022 * DD Form 293 (Application for the Review of Discharge), 13 December 2022 * self-authored statement * Report of Medical History, 11 July 1969 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 6 May 1971 * Report of Medical Examination, 30 January 1974 * Report of Medical History, 30 January 1974 * Statement of Medical Condition, 13 February 1974 * Dental Health Record * DD Form 214, 13 February 1974 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, due to the number of years since his infraction and being a model citizen since his return, he is requesting his discharge be upgraded. He has urgent medical conditions due to the war and needs to request Veterans benefits. 3. The applicant enlisted in the Regular Army on 11 July 1969, for a period of 3 years and was honorably discharged on 6 May 1971. He served a net service of 1 year, 9 months, and 26 days with 10 months and 12 days of foreign service. 4. He executed a reenlistment on 7 May 1971 for a period of 6 years. 5. A DA Form 20 (Enlisted Qualification Record) shows the highest rank/grade he obtained was specialist four (SP4)/E-4 with a date of rank of 18 August 1970. It additionally shows in Item 31 (Foreign Service) from 24 February 1970 through 5 January 1971 and from 13 September 1971 through 12 September 1971 service in United States Army Pacific –Vietnam. 6. A DA Form 20B (Record of Court-Martial Conviction) shows he was found guilty by court-martial of being absent without leave (AWOL) from on or about 20 April 1973 until on or about 12 July 1973. 7. A memorandum, Report of Result of Trial, shows the applicant pleaded guilty and was found guilty of AWOL. He was sentenced to forfeiture of $125.00 pay for one month, reduction from SP4 to private first class/E-3, and restriction for 55 days. The sentence was adjudged on 1 August 1973. 8. The applicant's separation packet is not available for review; however, his DD Form 214 shows he was discharged on 13 February 1974, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (For the Good of the Service), in the grade of E-1. His service was characterized as under conditions other than honorable (UOTHC). He completed 2 years, 1 month, and 1 day of net active service, with 9 months and 2 days of foreign service. Her served in Vietnam from 13 September 1971 through 14 July1972. His total active service was 3 years, 10 months, and 27 days with 251 days of lost time. 9. The applicant provides a self-authored statement, wherein he mentions Agent Orange. Additionally, he provides medical and dental documentation available for the Board's review. 10. Discharges under the provisions of AR 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, from the Soldier, to avoid a trial by court- martial. An UOTHC character of service is normally considered proper. 11. 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. 12. 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 an upgrade of his 13 February 1974 discharge characterized as under other than honorable conditions. 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 7 May 1971 and was discharged on 13 February 1974 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel (25 July 1973): Discharge for the Good of the Service. The DD 214 states the applicant had 251 days lost under Title 10, United States Code, Section 972. It shows Service in Vietnam form 13 September 1971 thru 14 June 1972. d. A Report of Result of Trial shows the applicant pled guilty to and was found guilty of a period of absence without leave (AWOL) from 20 April 1973 thru 12 July 1973. e. The applicant’s pre-separation Report of Medical History and Report of Medical Examination show the applicant was in good health without any medical history or conditions. f. No additional medical documentation was submitted with the application and his period of Service predates AHLTA. g. Review of the applicant’s records in JLV shows he was 35 diagnosed medical conditions, none of which are mental health conditions. He has two VA service- connected medical conditions: Impaired hearing (20%) and diabetes mellitus (20%). h. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a mitigating mental health condition is unwarranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A ? BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include two deployments to Vietnam, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding service-related medical issues and the review and conclusions of the ARBA Medical Advisor. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. 2. While the Board concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a medical condition, the Board found the fact that he successfully completed two tours of duty in Vietnam compelling as a basis for relief in this case. Based on a preponderance of the evidence, the Board determined the applicant’s character of service should be changed to honorable. The Board noted that this change will entail restoration of his rank to private first class because the basis for his reduction to the lowest enlisted grade was his original character of service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 his DD Form 214 for the period ending 13 February 1974 to show the following entries: * Character of service – honorable * Rank/pay grade – PFC/E-3 * Date of rank – 1 August 1973 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, 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, U.S. 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 ABCMR applicants (and/or their counsel) prior to adjudication. 3. AR 635-200, in effect at the time, provided guidance for the administrative separation of enlisted personnel: a. Chapter 10 of this regulation provided a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the Manual for Courts- Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The discharge request may be submitted after court-martial charges are preferred against the member, or, until final action on the case by the court-martial convening authority. A member who is-under a suspended sentence of a punitive discharge may also submit a request for discharge for the good of the Service. An UOTHC discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a general discharge certificate if such is merited by the member's overall record during the current enlistment. b. An honorable discharge is a separation with honor. The issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability, and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. c. An under honorable conditions (general), discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and the good of the service. 4. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) 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 (PTSD); traumatic brain injury; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003438 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1