IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230005943 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). Additionally, he requests an appearance before the Board via video or telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Enrollment, Agent Orange Veteran Payment Program, undated 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 Numbers AR20150018328 on 24 January 2017 and AR20210011832 on 9 November 2021. 2. As a new argument, the applicant states, in effect, his father passed away in 1968. His mother was struggling to raise his eight siblings on her own. He could not stay away from his family any longer and did what he thought was best. He served his country proudly for almost four years. He notes post-traumatic stress disorder (PTSD) and other mental health as conditions related to his request. 3. The applicant enlisted in the Regular Army on 21 January 1966 for a 4-year period. Upon the completion of his initial entry training, he was awarded military occupational specialty 76A (Supply Clerk). He was honorably discharged on 1 February 1967 for the purpose of immediate reenlistment. He reenlisted on the same date. The highest rank he attained was specialist/E-4. 4. The applicant served in the Republic of Vietnam from 13 April 1967 to 5 April 1968. 5. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on three occasions for the following violations: a. On 26 July 1967, for falling asleep on guard duty, on or about 25 July 1967. His punishment consisted of reduction to private first class/E-3, forfeiture of $30.00 pay for one month, and 14 days of extra duty. b. On 3 December 1967, for being observed in an off limits area after curfew, on or about 30 November 1967. His punishment consisted of reduction to private/E-2, forfeiture of $50.00 pay per month for two months, and extra duty for 30 days. c. On 16 October 1968, for failing to go at the time prescribed to his appointed place of duty, on or about 14 October 1968. His punishment consisted of reduction in rank to private/E-2 and forfeiture of $32.00 pay for one month. 6. The applicant was awarded the Army Good Conduct Medal on 16 December 1968 for exemplary behavior, efficiency, and fidelity for his period of service from 21 January 1966 to 20 January 1969. 7. Before a special court-martial, on 18 March 1969, the applicant pled guilty to and was found guilty of being absent without authority (AWOL) from on or about 10 January 1969 until on or about 4 March 1969. He was sentenced to hard labor without confinement for three months and forfeiture of $97.00 pay per month for three months. The sentence was approved and ordered duly executed on 3 April 1969. 8. Before a special court-martial, on 16 June 1969, the applicant pled guilty to and was found guilty of being AWOL from on or about 3 April 1969 until on or about 5 June 1969. He was sentenced to hard labor for three months and forfeiture of $97.00 pay per month for three months. The sentence was approved and ordered duly executed on 20 June 1969. 9. A DA Form 19-32 (Military Police Report), shows the applicant surrendered to military police, following a period of AWOL, on or about 2 June 1970. 10. Court-martial charges were preferred against the applicant on 5 June 1970 for violations of the Uniform Code of Military Justice. The relevant DD Form 458 (Charge Sheet) shows the applicant was charged with being AWOL on or about 3 November 1969 until on or about 2 June 1970. 11. The applicant consulted with legal counsel on 8 June 1970. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b. After receiving legal counsel, he voluntarily requested discharge, for the good of the service, under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged making this request free of coercion. He further acknowledged understanding that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement. 12. The applicant's immediate commander recommended approval of the request for discharge for the good of the service and further recommended the issuance of an UOTHC discharge. 13. The separation authority approved the applicant's request for discharge on 16 June 1970. He directed the applicant be reduced to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 14. Accordingly, the applicant was discharged on 16 June 1970, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms his service was characterized as UOTHC, with separation program number 246 and reenlistment code RE-3B. He was credited with 3 years, 5 months, and 5 days of total active service, with 352 days of lost time. 15. The applicant’s record contains a DD Form 215 (Correction to DD Form 214), dated 30 October 1975, wherein Item 30 (Remarks) of his DD Form 214 for the period ending 16 June 1970 was corrected to show he was issued a DD Form 1953A (Clemency Discharge) pursuant to Presidential Proclamation Number 4313. 16. The Army Discharge Review Board reviewed the applicant’s request for an upgrade of his characterization of service on 3 June 1981. After careful consideration, the Board determined the applicant did not provide sufficient evidence to mitigate his discharge. The Board denied his request. 17. The Army Board for Correction of Military Records (ABCMR) reviewed the applicant’s request for an upgrade his characterization of service on 24 January 2017 with reconsideration on 9 November 2021. On both occasions, after carefully reviewing the applicant’s request, supporting documents, evidence in the record, and published Department of Defense liberal consideration guidance, the Board determined the applicant’s characterization of service was not in error or unjust. The Board denied his request. 18. The applicant provides an undated copy of the Agent Orange Veteran Payment Program Certificate of Enrollment which shows the person named on the certificate filed a timely preliminary claim to participate in the Agent Orange Product Liability Settlement Fund. 19. Administrative separations under the provisions of Army Regulation 635-200, Chapter 10 are voluntary requests for discharge for the good of the service, in lieu of trial by court-martial. An UOTHC character of service is normally considered appropriate. 20. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 21. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) characterization of service to under honorable conditions (general). He contends he had mental health conditions including PTSD that mitigated his misconduct. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant was enlisted in the Regular Army on 21 January 1966; 2) The applicant served in the Republic of Vietnam from 13 April 1967-5 April 1968; 3) Before a special court-martial, on 18 March 1969, the applicant pled guilty to and was found guilty of being AWOL from 10 January-4 March 1969; 4) Before a special court-martial, on 16 June 1969, the applicant pled guilty to and was found guilty of being AWOL from 3 April- 5 June 1969; 5) Court-martial charges were preferred against the applicant on 5 June 1970 for being AWOL from 3 November 1969 -2 June 1970; 6) The applicant was discharged on 16 June 1970, Chapter 10, for the good of the service. His service was characterized as UOTHC. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and available military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided for review. d. The applicant noted mental health conditions including PTSD as contributing and mitigating factors in the circumstances that resulted in his separation. There was no indication the applicant reported mental health symptoms while on active service. A review of JLV was void of any behavioral health documentation, and the applicant receives no service-connected disability. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions including PTSD that contributed to his misconduct. (2) Did the condition exist or experience occur during military service? Yes, the applicant reports experiencing mental health conditions including PTSD while on active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence beyond self-report the applicant was experiencing a mental health condition including while on active service. The applicant did go AWOL, which can be a sequalae to some mental health conditions including PTSD, but this is not sufficient to establish a history of a condition during active service. However, the applicant contends he was experiencing a mental health condition including PTSD that mitigated his misconduct, and per Liberal Consideration his contention is sufficient for the board’s consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief 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 review, the Board concurred with the advising official finding insufficient evidence beyond self-report the applicant was experiencing a mental health condition including while on active service. Careful consideration was given to the applicant’s period of honorable service, his self - reporting of his mental health issues and that he surrendered to authorities during his period of AWOL. 2. However, the Board noted the applicant provided no post service achievements or character letters of support for the Board to weigh a clemency determination. The Board found there was insufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. service the applicant received upon separation was not in error or unjust. The Board determined reversal of the previous Board determination is unwarranted. Therefore, the Board denied relief. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20150018328 on 24 January 2017 and AR20210011832 on 9 November 2021. 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. Section 1556 of Title 10, U.S. Code (USC), 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. 2. Title 32, USC, Code of Federal Regulations 724.112 (Clemency Discharge) states: a. The clemency discharge was created by the President of the United States on 16 September 1974 in Proclamation 4313. Upon issuance to individuals who had an undesirable discharge, a clemency discharge served as written testimony that the individual had satisfied the requirement of the President's program, and fully earned his return to the mainstream of American society. b. A clemency discharge was a neutral discharge, neither honorable nor less than honorable. It did not effect a change in the character of service, and did not change, seal, erase, or in any way modify the person's past military record. 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 the ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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. 5. 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; 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. 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) AR20230005943 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1