IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230006585 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Veterans Affairs (VA) medical documents 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 served in Vietnam, and after that deployment, he wanted to get out of the Army. In 1973, he decided he wanted to go back in, but he found that he couldn’t take it anymore. He couldn't stand the stress, and he couldn't stand taking orders. He didn't find out until later that he had post-traumatic stress disorder (PTSD) from his service in Vietnam. He has been treated for PTSD at a VA medical clinic since 2011 or 2012. 3. On 19 August 1966, the applicant was inducted into the Army of the United States. Upon completion of training, he was awarded military occupational specialty 36C (Lineman). 4. The applicant served in the Republic of Vietnam from 12 February 1967 until 5 February 1968. 5. The applicant was honorably discharged on 22 August 1968. His DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) confirms he completed 2 years of net active service this period. He was awarded or authorized the National Defense Service Medal, Expert (M-14) Badge, Overseas Service Bar (2), Vietnam Service Medal, and the Vietnam Campaign Medal. 6. The applicant enlisted in the Regular Army, on 14 December 1973, for 3 years. 7. On 21 January 1974, the applicant was reported as absent without leave (AWOL) and remained absent in a desertion status until he was apprehended on 6 May 1974. 8. Court-martial charges were preferred against the applicant on 10 May 1974 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 21 January 1974 until on or about 8 May 1974. 9. The applicant consulted with legal counsel on 31 May 1974, and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a bad conduct discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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 further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a Veteran under both Federal and State laws. b. He submitted a statement in his own behalf stating it was kind of difficult for him to take orders during his previous time in service; but it is much harder now. He affirmed that more confinement would just make him more against being in the Army. 10. The applicant's commander recommended approval of the applicant's request for discharge, and further recommended the issuance of an undesirable discharge. 11. Consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 3 June 1974, and directed the issuance of an undesirable discharge. 12. The applicant was discharged on 3 July 1974. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was assigned Separation Program Designator KFS and Reentry Code 4. He completed 3 months and 3 days of net active service this period with 107 days of lost time. 13. The applicant provides multiple pages of VA progress notes that show he received treatment for various medical issues including insomnia, depression, and PTSD. These notes are provided in their entirety for the Board’s review within the supporting documents. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. 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. 16. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). The applicant asserts 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 summary of information pertinent to this advisory: * On 19 August 1966, the applicant was inducted into the Army. * The applicant served in the Republic of Vietnam from 12 February 1967 until 5 February 1968. * The applicant was honorably discharged on 22 August 1968. * The applicant enlisted in the Regular Army on 14 December 1973. * Court-martial charges were preferred against the applicant on 10 May 1974 for being AWOL from on or about 21 January 1974 until on or about 8 May 1974. * On 31 May 1974 he voluntarily requested discharge under AR 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. The request was approved. * He was discharged 3 July 1974 with an UOTHC discharge. 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, his ABCMR Record of Proceedings (ROP), his DD Form 214, some documents from his service record and separation as well as VA medical documents. 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 that PTSD and the Vietnam War mitigate his discharge. The applicant reported that after his initial time in service, to include a deployment to Vietnam, he opted to reenlist. He noted that he “couldn’t take it anymore,” and was unaware he was suffering from PTSD during his second period of service. 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). His separation medical exam was also not available. His self-authored statement from the time of misconduct highlighted that he was having more difficulty taking orders this time around though there was no mention of any mental health related concerns. No other records were provided to substantiate his claim. f. Per review of the applicant’s EHR, he first engaged in care at the VA in 1999 and was first seen for mental health in 2011. The applicant has primarily engaged in medication management and care through a psychiatrist. Per his VA treatment records he has been diagnosed with insomnia – unspecified, major depressive disorder (MDD; recurrent - mild, recurrent – unspecified, and single episode – unspecified) and PTSD, though he was not diagnosed with PTSD until May 2020. The applicant is 100% service connected, to include 50% for PTSD. His compensation and pension (C&P), completed 10 April 2011, indicated that he did not meet criteria for PTSD, but instead met a bereavement disorder diagnosis. During this evaluation he denied any mental health engagement prior to 2011, when his significant other died. Any further C&Ps were not available for review, so it is unclear what trauma the applicant was service connected for at a later date. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health treatment nor diagnoses. g. It is the opinion of the Agency Behavioral Health Advisor that there is minimal evidence, beyond self-report, to indicate the applicant had a mitigating condition during his time in service. However, the applicant has since been service connected for PTSD. Per Liberal Consideration guidance, the applicant’s 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 asserts PTSD as a mitigating factor. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts the PTSD was present during his time in service. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD. No medical records were available from either period of service. Per his account in a self-authored statement during his separation process, he noted not doing well with taking orders during his second period of service. During the applicant’s initial C&P in 2011, the applicant did not meet criteria. The applicant has since been service connected for PTSD. It is important to note, going AWOL is an avoidance behavior associated with the natural history and sequelae of PTSD. There is a nexus between his reported condition and his misconduct that led to his discharge. Per Liberal Consideration guidelines, his assertion alone is worthy of consideration by the Board, and given his service connection for PTSD, this Agency Behavioral Health Advisor would recommend an upgrade in his characterization of service. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial 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 the medical review, the Board noted the advising official opine finding a nexus between his reported condition and his misconduct that led to his discharge. The opine determined there is minimal evidence, beyond self-report, to indicate the applicant had a mitigating condition during his time in service. Under liberal consideration, the Board recognized the applicant has been service connected for his PTSD The Board the applicant’s record is absent any medical documentation to support his self-authored claims. 2. The Board determined based on the applicant’s 107 days of AWOL, there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Further, the applicant provided insufficient evidence of post- service achievements or character letters of support that would attest to his honorable conduct that might have mitigated the discharge characterization. During the Board deliberation they found the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to a general under honorable condition discharge. However, it was noted by the Board the applicant’s service record did not reflect he was awarded the Army Good Conduct Medal (1st award) and his record shows he received "excellent" conduct and efficiency ratings throughout his service for the period of 19 August 1966 to 22 August 1968. Based on this the Board granted partial relief for correction of the applicant’s record to award the Army Good Conduct Medal. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by awarding him the Army Good Conduct Medal (1st Award) for exemplary service from 19 August 1966 to 22 August 1968 and adding the medal to his DD Form 214 for the period ending 22 August 1968. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s under other than honorable conditions (UOTHC) discharge to 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. REFERENCES: 1. Title 10, U.S. Code, 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. 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. 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. c. Chapter 10 provided that a member who had committed an offense or offenses, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 4. 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. 5. 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. 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) AR20230006585 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1