IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004329 APPLICANT REQUESTS: in effect, an upgrade of his under other than honorable conditions discharge due to his mental health. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he is requesting a correction to his under other than honorable conditions discharge for mental health reasons. He is old and needs mental health medical care from the Army. 3. A DD Form 47 (Record of Induction) shows the following: * the applicant was given a physical profile rating of “1” in all physical factors on 15 December 1970, after physical examination found him acceptable for induction into the Armed Forces * he was inducted into the Army of the United States on 23 March 1971 4. A DA Form 2-1 (Personnel Qualification Record – Part II) shows the applicant served in Vietnam from 31 August 1971 through 21 June 1972. 5. DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment (NJP) on 7 September 1972 for the following misconduct: * willfully disobeying a lawful order from his first sergeant on 8 August 1972, to turn in all personal items he was not taking with him while on leave * absenting himself without authority from his unit at Fort Benning, GA, the 48th Company, 4th Student Battalion (Airborne), the School Brigade, U.S. Army Infantry School on 15 August 1972 and remaining absent unit 6 September 1972 6. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 27 February 1973 for the purpose of immediate reenlistment. He was credited with 1 year, 10 months, and 12 days of net active service, of which 10 months and 20 days were foreign service in Vietnam. 7. A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant reenlisted for his present duty assignment on 28 February 1973. 8. The applicant’s service records contain multiple additional DA Forms 2627-1 showing he the applicant again accepted NJP under Article 15 of the UCMJ on the following dates for the following misconduct: * on 6 June 1974, for failing to go at the time prescribed to his appointed place of duty at the Company Mess Hall at 0600 on 1 June 1974 * on 17 June 1974, for absenting himself from his unit without authority from about 0500 on 12 June 1974 through 1100 on 14 June 1974 * on 7 November 1974, for absenting himself from his place of duty without authority from 0400 on 5 November 1974 thorough 0905 on 5 November 1974 * on 3 December 1974, for absenting himself from his place of duty without authority at 0430 on 2 December 1974 through 0830 on 2 December 1974 * on 31 December 1974, for absenting himself from his place of duty without authority on 25 December 1974 through 0430 on 26 December 1974 9. A Headquarters and Support Company, 8th Medical Battalion, 8th Infantry Division memorandum, dated 3 April 1975, shows a rehabilitative transfer was requested for the applicant after approval of a “Chapter 13” discharge. A subsequent memorandum dated 21 April 1975, shows the applicant received a rehabilitative transfer to Headquarters and Headquarters Battalion, 1st Battalion, 83rd Field Artillery. 10. A final DA Form 2627-1 shows the applicant again accepted NJP under Article 15 of the UCMJ on 2 September 1975, for failing to go at the time prescribed to his appointed place of duty at the 1st Battalion, 83rd Field Artillery Dining Facility at 0430 on 2 September 1975. 11. The complete facts and circumstances surrounding the applicant’s discharge are unknown as his discharge packet, to include the initiation, notification, recommendations, and approval are not in his available records for review. 12. A Headquarters, 8th Infantry Division, Office of the Staff Judge Advocate memorandum, dated 18 November 1975, shows after review by the Chief, Administrative Law, there was no legal objection to approving the applicant’s discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5. This discharge is not based in whole or in part on drugs. 13. A DA Form 3082 (Statement of Medical Condition) shows the applicant signed and dated the form on 31 December 1975, indicating his last separation examination was on 11 September 1975 at U.S. Army Health Clinic, Baumholder, Germany and to the best of his knowledge there had been no change in his medical condition since his separation examination. 14. There are no documents in the applicant’s available service or medical records indicating he was diagnosed with or treated for a mental health or another medical condition while in the service. 15. The applicant’s final DD Form 214(Report of Separation from Active Duty), shows the following: a. The applicant was discharged under other than honorable conditions on 31 December 1975, under the provisions of Army Regulation 635-00, paragraph 13-5a(1), due to unfitness – frequent involvement of a discreditable nature with authorities, with a separation code of JLB (Discreditable Incidents-Civilian or Military). b. He was credited with 2 years, 10 months and 3 days of net active service this period; 1 year, 10 months, and 12 days of prior active service; and 4 years, 8 months, and 15 days of total service with 1 day of lost time. 16. A letter from the Army Review Boards Agency (ARBA), dated 18 July 2023, shows the applicant was requested to provide copies of the medical documents that support his mental health issues, but he did not respond. 17. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests discharge due to mental health conditions. b. The applicant’s record was summarized in the ABCMR ROP. Of note, during his first period of service from 23Mar1971 to 27Feb1973, he served in Vietnam from 19710831 to 19720621. His service was characterized as ‘Honorable’. At the end of the term, he immediately reenlisted. His primary MOS was 94B20 Food Service Specialist. He was discharged 31Dec1975 under provisions of AR 635-200 para 13- 5A(1) for unfitness due to frequent involvement of a discreditable nature with authorities. The ABCMR ROP listed all of the misconduct noted in the applicant’s record which largely included multiple instances of being absent from his unit or absent from his place of duty which continued after his rehabilitative transfer. His service was characterized as Under Other Than Honorable Conditions. c. There were no service treatment notes or JLV records available for review and therefore, no documentation of a mental health diagnosis. The 03Sep2014 Secretary of Defense Liberal Guidance Memorandum and the 25Aug2017 Clarifying Guidance, were considered; and per this guidance the applicant should receive liberal consideration based on the “evidence that may support the existence of such a condition”. With this in mind, it was noted that all misconduct took place after his Vietnam deployment. In addition, the applicant’s multiple instances of leaving without authorization is consistent with an avoidance reaction to trauma that likely was experienced during his combat deployment and is suggestive of undiagnosed PTSD. His official record did document exposure to combat activity: He received the Vietnam Cross of Gallantry w/Palm award. Therefore, in the ARBA Medical Reviewer’s opinion, under Liberal Consideration, there is evidence to support a PTSD diagnosis both in the nature of his offences, and the timing of the offences. d. The applicant indicated that he was in pursuit of discharge due to mental health reasons. A change from administrative discharge to medical discharge is not supported by the current available record: There was insufficient evidence to support that the applicant had a boardable mental health condition which failed retention standards of AR 40-501 chapter 3 at the time of discharge from service. Referral for medical discharge processing for Army disability was not warranted. The applicant also indicated that he needed help from the Army for mental health treatment. Although Army medical discharge processing isn’t warranted, a discharge upgrade would make him eligible to receive VA benefits. Recommend the Board consider upgrade in discharge from ‘Under Other Than Honorable Conditions’ to ‘Under Honorable Conditions, General’ or ‘Honorable’ due to PTSD. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Although PTSD diagnosis was not documented in the record, under Liberal Consideration, the applicant’s change in behavior manifested by multiple instances of being absent from his place of duty or his unit after his combat deployment, is consistent with avoidance reaction to trauma and suggestive of PTSD. (2) Did the condition exist, or did the experience occur during military service? Yes. The PTSD condition is attributable to his Vietnam deployment. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The multiple instances of being absent from duty/unit as well as the failure to obey a lawful order are all mitigated by the PTSD condition. 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 the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support that the applicant had a boardable mental health condition which failed retention standards at the time of discharge from service. Referral for medical discharge processing for Army disability was not warranted. 2. Although the applicant provided no post service achievements or character letters of support for the Board to weigh a clemency determination. The Board, however agreed with the opine recommendation that an upgrade of the applicant’s discharge is warranted. The Board noted, based on the applicant’s prior period of honorable service, and his 10-month deployment to Vietnam, they found sufficient evidence in-service mitigating factors for his multiple instances of being absent from his place of duty or his unit after his combat deployment. Based on this, the Board granted relief to correct the applicant’s record and show his characterization of service as general, under honorable conditions. 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 the applicant a DD Form 214 for the period ending 31 December 1972 showing his characterization of service as general, under honorable conditions. 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. 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, on those conditions or experiences. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, established policy and procedures for the separation of enlisted personnel, including the elimination enlisted personnel who were found to be unfit or unsuitable for further military service. a. Chapter 13, as in effect at the time, pertained to separation for unfitness or unsuitability. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. An individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities (2) sexual perversion, including but not limited to lewd and lascivious acts, indecent exposure, or indecent acts with or assault on a child (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana (4) an established pattern of shirking (5) an established pattern of dishonorable failure to pay just debts (6) an established pattern showing dishonorable failure to contribute adequate support to dependents, including failure to comply with orders, decrees, or judgments. b. The regulation further states 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. 5. Title 10, U.S. Code, section 1556 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004329 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1