IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005696 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.) * Veterans Affairs (VA) documents * Certificate of marriage 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 his behavior during that time was due to lack of services after he returned from his tenure in Vietnam. He turned to drinking to cope with his memories of his time in service. It became so unbearable that he sought out help. He was in inpatient care and did his best to maintain a "normal" life after. He has been diagnosed with severe post-traumatic stress disorder (PTSD), hypertension, and a few heart conditions due to exposure of toxins while in Vietnam. Currently, he has a few medical conditions that qualify for presumptive conditions under the Promise to Address Comprehensive Toxics Act. 3. Having previous honorable service in the U.S. Marine Corps Reserve, the applicant enlisted in the Regular Army, on 29 December 1965. 4. On 12 April 1966, the applicant was reported as absent without leave (AWOL) and remained absent until he returned to military authorities on 3 August 1966. 5. Before a special court-martial on or about 5 August 1966, at Fort Lewis, WA, the applicant was found guilty of one specification of going AWOL, from on or about 12 April 1966, until on or about 3 August 1966. The court sentenced him to confinement at hard labor for one month, and forfeiture of $62.00 pay for six months. The sentence was approved on 5 August 1966. 6. Special Court-Martial Order 31, issued by Headquarters, 1st Battalion, 8th Infantry, Fort Lewis, WA on 12 August 1966, noted that the applicant's sentence had been suspended for five months and twenty-three days, at which time, unless sooner vacated, the unexcused portion of the sentence would be remitted. 7. On 15 September 1966, the applicant arrived in the Republic of Vietnam. 8. On 27 April 1967, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 11 April 1967. His punishment included forfeiture of $29.00 for one month. 9. On 27 May 1967, the applicant departed the Republic of Vietnam. 10. On 17 November 1967, the applicant accepted NJP under Article 15 of the UCMJ, for being AWOL for three days. His punishment included forfeiture of $15.00 for one month, 14 days restriction, and extra duty. 11. On 30 March 1968, the applicant was again reported as AWOL and remained so absent. 12. On 15 May 1968, the applicant accepted NJP under Article 15 of the UCMJ, for going AWOL, from on or about 30 March 1968, until on or about 14 May 1968. His punishment included reduction in grade to E-1, and forfeiture of $31.00 pay for two months. 13. On 16 July 1968, the applicant was again reported as AWOL and remained absent until he returned to military authorities on 9 February 1969. 14. On 24 February 1969, the applicant was again reported as AWOL and remained absent until he returned to military authorities on 17 October 1969. 15. On 4 November 1969, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. The examining psychiatrist noted that the applicant was very bitter about alleged mistreatment in the service and is unwilling to continue in the military. 16. On 12 December 1969, the applicant's commander notified him of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness for military service. As the specific reasons, the commander cited the applicant's frequent incidents of a discreditable nature with military authorities. 17. The applicant consulted with legal counsel and affirmed he had been advised of the basis for the contemplated separation action. Following his consultation, he waived his right to personally appear before, and to have his case considered by a board of officers. He declined to submit a statement in his own behalf and waived his right to further representation by military counsel. He acknowledged he could expect to encounter substantial prejudice in civilian life, if given either a general discharge (under honorable conditions) or an undesirable discharge. 18. On 18 December 1969, the applicant's commander formally recommended the applicant's discharge, under the provisions of Army Regulation 635-212, for unfitness. 19. Consistent with the chain of command’s recommendations, the separation authority approved the recommended discharge on 5 January 1970, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 20. The applicant was discharged on 13 January 1970. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-212, with Separation Program Number 28B, Department of Defense (DoD) Discharge Review Program (Special), with Special Program Designator KCR. He was assigned Reentry Codes 3 and 3B. He was discharged in the lowest enlisted grade and his service was characterized as under honorable conditions (general). He completed 2 years, 1 month, and 27 days of net active service this period with 678 days of lost time. 21. Additionally, his DD Form 214 shows he was awarded or authorized the National Defense Service Medal, Purple Heart, Vietnam Service Medal, Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with 60 Device. 22. The applicant petitioned the Army Discharge Review Board requesting upgrade of his under other than honorable conditions (UOTHC) discharge. On 16 June 1978, the Board voted to grant the applicant’s upgrade and noted that he had received credit for a tour in the Republic of Vietnam, during which he received a Purple Heart. 23. The applicant provides VA and medical documents that show he was diagnosed and treated for PTSD, alcohol abuse, and low back pain. These documents are provided in their entirety for the Board’s review within the supporting documents. 24. 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. 25. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under honorable conditions (general) discharge. The applicant asserted PTSD as a mitigating factor in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * Having previous honorable service in the U.S. Marine Corps Reserve, the applicant enlisted in the Regular Army, on 29 December 1965. * Before a special court-martial on or about 5 August 1966, at Fort Lewis, WA, the applicant was found guilty of one specification of going AWOL, from on or about 12 April 1966, until on or about 3 August 1966. * On 15 September 1966, the applicant arrived in the Republic of Vietnam. On 27 May 1967, the applicant departed the Republic of Vietnam. He was awarded or authorized the National Defense Service Medal, Purple Heart, Vietnam Service Medal, Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with 60 Device. * On 27 April 1967, the applicant accepted non-judicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty, on or about 11 April 1967. * On 17 November 1967, the applicant accepted NJP for being AWOL for three days. * On 15 May 1968, the applicant accepted NJP for going AWOL, from on or about 30 March 1968, until on or about 14 May 1968. * On 16 July 1968, the applicant was again reported as AWOL and remained absent until he returned to military authorities on 9 February 1969. * On 24 February 1969, the applicant was again reported as AWOL and remained absent until he returned to military authorities on 17 October 1969. * On 12 December 1969, the applicant's commander notified him of his intent to initiate separation actions against him under the provisions of AR 635-212, by reason of unfitness for military service. As the specific reasons, the commander cited the applicant's frequent incidents of a discreditable nature with military authorities. * The applicant was discharged on 13 January 1970 and his service was characterized as UOTHC. * The applicant petitioned the Army Discharge Review Board requesting upgrade of his under other than honorable conditions (UOTHC) discharge. On 16 June 1978, the Board voted to grant the applicant’s upgrade and noted that he had received credit for a tour in the Republic of Vietnam, during which he received a Purple Heart. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service record and separation, as well as VA documents and a certificate of marriage. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserted PTSD is related to his request for discharge. He reported that his behavior was due to his lack of services after his return from Vietnam. He noted he’d been drinking to cope. He asserted that he’s been diagnosed with severe PTSD, hypertension, and a few heart conditions due to exposure of events and toxins while in Vietnam. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). However, his supporting documents and service records contained relevant medical information. The applicant was seen for a mental status exam on 4 November 1969, while in the stockade (presumably a separation evaluation). The applicant was found to meet retention standards per AR 40-501, chapter 3. He was also found mentally competent and responsible, both to tell right from wrong and to adhere to the right, and further possessed sufficient intellectual capacity to participate in any administrative procedure or court marital. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. It was also noted that he was highly unlikely to successfully adjust to military life as the applicant was “very bitter about alleged mistreatment in the service” and was unwilling to continue in the military. His Report of Medical Examination completed 7 November 1969 did not list any psychiatric or neurologic concerns, however no self-report component was available for review. f. Per the applicant’s VA EHR, he is not service connected, and he has had no recent engagement in any mental health care through the VA. However, given the characterization of his discharge, he would not typically be eligible for most VA benefits. That said, the applicant provided forms from the VA in his supporting documents that show he was treated by the VA in November of 1985. The applicant was admitted on 25 November 1985 and discharged on 25 April 1986 (inpatient). The discharge summary show’s that he was diagnosed with PTSD – delayed and history of substance abuse – alcohol. The summary also details his presenting symptoms (depression and significant trauma related symptoms secondary to Vietnam) and details several of the traumatic experiences he was continuing to struggle with. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available. His summary indicated that he’s been diagnosed with severe dementia with other behavioral disturbance (noted in 2023), chronic PTSD (2020), and late onset Alzheimer’s disease with behavioral disturbance (2019). No other medical records were provided. g. It is the opinion of the Agency Behavioral Health Advisor that there is no evidence from his time in service to support the presence of a mitigating mental health condition. However, the applicant was diagnosed, and treated (with a higher level of care) for PTSD secondary to his experiences in Vietnam. In addition, his initial characterization of service has likely hindered him from gaining service connection. Per Liberal Consideration 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 he had a mitigating condition (PTSD). (2) Did the condition exist, or experience occur during military service? Yes. The applicant does assert a mitigating condition was present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. In 1978, when ADRB partially upgraded him solely based on his record and meeting specific requirements, they noted that he had not submitted any matters of mitigation and therefore determined full relief was not warranted. The applicant has now provided evidence. The applicant was diagnosed with PTSD in 1985, during 5 months of inpatient psychiatric care to address symptoms secondary to his experiences in Vietnam (his traumatic experiences and his responses to them were summarized in his records). While there is no evidence of a mitigating mental health condition being diagnosed during his time in service, it is important to note that PTSD was not yet a diagnosis (was not adopted into the Diagnostic and Statistical Manual of Mental Disorders [DSM] until 1980). Post-Vietnam syndrome wasn’t even diagnosed until the 1970’s. His described response of significant substance use, and avoidance is consistent with the presentation often seen in Vietnam era soldiers, who then later went on to meet criteria for PTSD. In sum, the fact that his behaviors were not recognized as a trauma response is consistent with the era that he served. In addition, the applicant’s misconduct included behavior consistent with the natural history and sequelae of PTSD, specifically avoidance as evidenced repeatedly through failure to reports and AWOLs. There is a nexus between PTSD and the misconduct that led to his discharge. Hence, per Liberal Consideration guidance, this advisor recommends mitigation and full upgrade to his discharge characterization. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not 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 the medical advisory the Board concurred with the advising official finding no evidence of a mitigating mental health condition being diagnosed during his time in service, however it is important to note that PTSD was not yet a diagnosis (was not adopted into the Diagnostic and Statistical Manual of Mental Disorders [DSM] until 1980). Post-Vietnam syndrome wasn’t even diagnosed until the 1970’s. 2. The Board determined, based on the advising opine, that the applicant’s described response of significant substance use, and avoidance is consistent with the presentation often seen in Vietnam era soldiers, who then later went on to meet criteria for PTSD. In sum, the fact that his behaviors were not recognized as a trauma response is consistent with the era that he served. Further, the Board noted a nexus between PTSD and the misconduct that led to his discharge. The Board determined there is sufficient evidence of in-service mitigation to overcome the misconduct. The Board found that the character of service the applicant received upon separation warranted relief. Additionally, during deliberation, the Board found the applicant’s record was absent awards for his service in the Republic of Vietnam. Therefore, the Board granted relief to upgrade the applicant’s discharge to honorable and add the Republic of Vietnam Gallantry Cross with Palm Unit Citation which was not reflected on his DD FORM 214. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx xx xx GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by re-issuing the applicant’s DD Form 214 for the period ending 13 January 1970 to show his characterization of service as honorable and add the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 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 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. 4. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 5. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Navy Records (BCM/NR), on 3 September 2014, to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including 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 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. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, 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) AR20230005696 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1