IN THE CASE OF: BOARD DATE: 26 February 2021 DOCKET NUMBER: AR20200002649 APPLICANT REQUESTS: Through counsel, affirmation of his previously upgraded discharge, upgraded under the Department of Defense (DoD) Special Discharge Review Program (SDRP), and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a separation authority, separation code, and narrative reason for separation consistent with "Secretarial Authority." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 17 November 2019, with 10-page self-authored affidavit * Brief from the Connecticut Veterans Legal Center (30 pages) * Service Record Documents (27 pages) * Authorized Awards Replacement Letter * Private Medical Documents (4 pages) * Department of Veterans Affairs (VA) Veterans Center diagnosis of post-traumatic stress disorder (PTSD) * VA Benefits Denial Letters (7 pages) * VA Board of Veterans Appeals Denial (11 pages) * Bachelor of Arts Diploma * Police Records Check * 6 Photos of Soldiers in Vietnam * 1 Family Photo * 5 Letters of Support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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: a. He grew up in a military family; he enlisted in the Army instead of being drafted. It was his intent to follow in his father's footsteps and make the military a career. He enlisted, completed basic training, got married, completed advanced individual training as a medic, and was assigned to duty in Vietnam. b. He relates several incidents while in Vietnam, of being in engagements that resulted in the deliberate injury or death of civilians. He remembers a specific incident in which he killed a 14 year old boy who had led his unit into an ambush. c. In his early months in Vietnam, he started using drugs to numb the trauma he was experiencing from his responsibilities as a medic, which included the identification of bodies. He had never used drugs before going to war. He was introduced to them for the first time by another Soldier in Vietnam. Drug use was all around him, with everyone in his unit smoking dope or doing other drugs. It seemed like everyone was using something to numb the pain. He first started using controlled medication because he had access to it, to stay awake and to self-medicate his PTSD symptoms. He was introduced to heroin in January 1971 and soon became addicted. d. He recounts that a young Soldier came to visit him. The Soldier was assigned to the motor pool. He was looking for the applicant because he was the "doc" who was dispensing pain medications and he thought he would help him. At that point, he (the applicant) was dispensing pain killers but only to his own squad mates. He refused to give the Soldier meds because he was not sure he could trust him. Later that day, the Soldier killed himself. This prompted his squad mates to come to his bunk; they pulled him out of it and stomped him with their booted feet. They dragged him to the motor pool for a day of interrogation and readjustment. e. The Viet Cong overran Firebase Maryanne on 28 March 1971, where some of his buddies were living. He was one of the medics who was dispatched to treat the wounded, body bag the dead, and pick up body pieces for later identification, including the body parts of some of his friends. He is not sure what happened the following day, while he was cleaning up body parts, but he was marked as absent without leave (AWOL). There was a lot of confusion over those few days. In the chaos, he would not have been anywhere off base. f. With the withdrawal from Vietnam, sometimes commanders would try to detox people, putting them in a hospital bed to dry out or sober up. He was "detoxed" in this manner a couple of times. He wanted to stop using heroin but couldn't. He took the Chapter 10 discharge because the Army's approach to detox was very intense but there was no mental health treatment to go with it and there was no treatment for PTSD. g. After his discharge, he was initially able to get a job and stay drug free until 1975. However, the news coverage of the fall of Saigon and stories of Vietnam that where being televised caused all of his memories of Vietnam to come flooding back. He again turned to heroin. h. He was arrested twice, on 5 December 1975 for possession of a controlled substance and on 8 August 1975 for trying to pass a fraudulent prescription for codeine. The courts allowed him to go into a drug treatment program and he was placed on probation. Following the drug treatment program in 1976, he has able to remain clean (for over 42 years) and find meaningful employment. i. In 1977, his discharge was reviewed and upgraded to honorable under the DoD Discharge Review Program (Special) (SDRP). He subsequently received a DD Form 215 (Correction to the DD Form 214), in 1978, indicating his SDRP upgrade had not been affirmed. j. He started receiving treatment for his PTSD about 25 years ago at the Hartford Veterans Center, where he is still being seen. Despite his SDRP upgrade, the VA has denied him entitlement to service-connection for his PTSD, and they've denied him his Veteran status. k. He regrets using heroin in Vietnam, and regrets the circumstances of his discharge. But more importantly, he is heartbroken over Vietnam and always will be. He has done everything in his power to live an honorable life, to give back to his community, and to teach peace. 3. Counsel states: a. The applicant submits this application for a discharge upgrade after decades of honorable citizenship, service to his community, country, and family, and based on equity, fundamental fairness, and clemency. b. The applicant volunteered to serve in Vietnam as a combat medic. His PTSD led to an under other than honorable conditions discharge. He has lived with PTSD for the last 50 years as a consequence of his service in Vietnam. c. The applicant has now sustained over 40 years of recovery from opioid addition and had rebuilt his life with humility, consistency and dignity. d. The majority of counsel's summary repeats the applicant's statements setting forth his personal and family history prior to his enlistment; his recollection of the traumatic incidents he participated in and witnessed while serving in Vietnam; his introduction to and addiction to heroin; and his post-service life. e. Counsel cites statutes, rules, regulations, memoranda, and publications that he believes are relevant to this case. f. Counsel notes that PTSD and self-medication through illegal drug use was and is, common among the Soldiers who fought in the Vietnam War. Much less common are those former Soldiers who have sustained recovery from addiction and who carry the burdens of chronic PTSD with dignity, as does the applicant. Changes in DoD instructions provide that the Boards are to grant a liberal consideration to upgrade requests from Veterans with PTSD, recognizing that many veterans served when PTSD was not yet a recognized diagnosis. Counsel specifically references the Hagel and Wilkie Memoranda and the consideration that his PTSD should be considered as a mitigating factor. g. Counsel concludes that while the applicant failed to navigate the horrors of Vietnam without succumbing to heroin use and sale to support that habit, he is an honorable man. He has proven his good character and deep respect for this country over a lifetime of service. 4. The applicant enlisted in the Regular Army on 5 January 1970. He served in the Republic of Vietnam from 5 August 1970 through 14 July 1971. 5. The applicant reports that he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions while in Vietnam. While the available record does not include copies of these NJPs, his statement is corroborated by his immediate commander's statement, dated 6 May 1971, regarding his bar to reenlistment. 6. The applicant's immediate commander initiated the applicant's bar to reenlistment on 6 May 1971. In doing so, he cited: * the applicant successfully withdrew from drugs on two occasions in January 1971 and March 1971; however, each time he returned to the use of narcotics * he showed no capability to rehabilitate himself and he lacked the motivation to refrain from drug use * he accepted NJP on 29 March 1971 for violation of Article 86, UCMJ * he accepted NJP on 30 April 1971 for a violation of Article 113, UCMJ * he had frequent absences from his place of duty * he was failing to perform his duties in the prescribed manner * his continuous drug abuse and negative attitude and professional incompetence 7. Court-martial charges were preferred against the applicant on 29 May 1971, for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows that while serving in Vietnam, he was charged on the following dates for the indicated offenses: * selling a habit forming drug, heroin, on or about each successive day in February and March 1971 * possession of a habit forming drug, heroin, on or about 26 May 1971 * attempting to transfer a habit forming drug, heroin, on or about 26 May 1971 * using a habit forming drug, heroin, on or about 27 May 1971 8. The applicant consulted with legal counsel on 21 June 1971. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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. c. He was advised he could submit any statements he desired in his own behalf but declined to do so. 9. In his approval of the recommendation, the applicant's battalion commander noted that the applicant had been cooperative in providing information leading to the arrest of two drug pushers. 10. The separation authority approved the applicant's request for discharge on 2 July 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and be issued a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 15 July 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was initially issued shows he was discharged in the rank/grade of private/E-1, his service was characterized as under other than honorable conditions (UOTHC), and he was issued an Undesirable Discharge Certificate). 12. 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. 13. The DoD directed the Services, on 4 April 1977, to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DoD SDRP, required that a discharge upgrade to either honorable or under honorable conditions (general) be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, had been wounded in action, had been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 14. The applicant's discharge was reviewed by the Army Discharge Review Board (ADRB), on or about 23 June 1977, under the DoD SDRP. The ADRB elected to upgrade his UOTHC discharge to an honorable discharge. His previous DD Form 214 was voided and a new DD Form 214 was created to reflect this change. 15. Public Law 95-126 was enacted in October 1978. This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector; required the Service Departments to establish historically-consistent uniform standards for discharge reviews; and required the Service Departments to reconsider all discharges previously upgraded under the DoD SDRP using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. 16. In accordance with Public Law 95-126, the ADRB re-reviewed the applicant's discharge under the new uniform standards for discharge review. The ADRB determined the applicant's discharge did not qualify for upgrading under the new uniform standards. Consequently, the Board did not affirm his previous upgrade. The Board noted that their decision in no way altered, changed, or modified his previously upgraded discharge under the SDRP. However, because of the new law, he would not be able to use the upgraded discharge to qualify for VA benefits. A DD Form 215 was issued on 17 July 1978, showing his characterization of service was warranted under the provisions of the DoD SDRP. 17. The Board has been advised in similar cases that the VA often requires validation or affirmation of DoD SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits. 18. The applicant completed a Bachelor of Arts degree, cum laude, on 23 May 1997. 19. The VA denied the applicant's request for benefits and Veteran status on 3 May 2004 and 22 August 2008. The Board for Veterans Appeals upheld those denials on 21 November 2012. 20. The applicant provides: a. Three private medical statements showing his treatment for diabetes and his successful drug addiction treatment. b. A statement from the Hartford Veterans Center, dated 27 September 2019, which notes the applicant was diagnosed with PTSD in 1987 and was still participating in group therapy. c. Third-party letters of support from family and friends: (1) In her statement, his wife recounts the applicant's personal history and her recollections of him before and after his period of service. She states he was not the same person she married when she met him in Hawaii while he was on leave. He was radically changed, especially for a guy who never drank alcohol, never smoked, never tried or did any drugs before he left for Vietnam. She now knows that he was addicted to heroin at that point. When he got out, it was a very difficult and hard time for them. Her husband has always had a strong sense of fairness and has provided support and encouragement to their daughters. He believes you have to treat people right but that was not what happened over there. She also believes he has never really left Vietnam. (2) In her statement, his daughter states growing up, her dad was always vocal in speaking out about his experience in Vietnam, and sharing his experience of living with PTSD. As a survivor of sexual assault herself and a professional working with trauma survivors, she appreciates and admires how her lives as an activist. Witnessing her dad's ability to speak about the trauma he endured.in Vietnam helped her to learn how to speak out about her own trauma as well. Growing up, they had a big and loving family. Her parents were always there and present for their kids. Her dad would work during the day and her mother would work evenings in order to make sure that she and her three sisters were always with a parent. They always made sure the kids were taken care of. Her father is a very honorable man, he still volunteers to speak at high schools and continues to work in that way to advocate for children. She attached a speech she gave in high school about her father's life and struggles with his Vietnam experiences and how he has never given up or forgotten his fallen comrades. (3) In her statement, a former teacher from a high school recounts how the applicant would volunteer to speak to her students about his life and was spectacular in the classroom because he would put his presentations in context. It was never just about what he did in Vietnam, or what happened to him, but about the context of his life growing as a military brat and how the service affected his life as well as the history of Vietnam and the context of the war. He was very gracious with the students often staying after class to answer more questions. He is a kind and gentle soul who deeply loves this country. He has been an active and engaged citizen in his x, volunteering in the education system and participating in civic discourse and local politics. He cares deeply about where he lives and about the people there. (4) In his statement, a second former teacher recounts how the applicant would come in to talk to his students for over 20 years. He knows that the applicant also volunteered in this way at two other high schools. Often there were students he spoke to who had family members in the service and he would always be respectful to them. He would talk to them in such a respectful way, because he understood how sensitive and important the issues are about military service and the sacrifices service member and their families make. He was always so caring to the children who came up to him, afterwards. He would encourage them to read one of the books he brought in from the library, especially the poetry. The applicant really encouraged literacy and would nurture their intellectual development, and help to make the books feel like an accessible resource to the students. He knows the applicant to be an honorable man, who gives of his time and energy to serve his community. He is grateful for his service to the thousands of his students the applicant reached in his classrooms. He wholeheartedly supports his application for a discharge upgrade. 21. The Board should consider the applicant's statement, the third party statements of support, his history of overcoming drug addiction, and his diagnosed PTSD for consideration of granting relief in accordance with the published equity, injustice, or clemency determination guidance. MEDICAL REVIEW: 1. The applicant is applying to the ABCMR got affirmation of his previously upgraded discharge, upgraded under the DoD SDRP, and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show a separation authority, separation code, and narrative reason for separation consistent with "Secretarial Authority." 2. He regrets using heroin in Vietnam, and regrets the circumstances of his discharge. But more importantly, he is heartbroken over Vietnam and always will be. He has done everything in his power to live an honorable life, to give back to his community, and to teach peace. Counsel concludes that while the applicant failed to navigate the horrors of Vietnam without succumbing to heroin use and sale to support that habit, he is an honorable man. He has proven his good character and deep respect for this country over a lifetime of service. 3. The Army Review Boards Agency Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 17 November 2019, with 10-page self-authored affidavit * Brief from the Connecticut Veterans Legal Center (30 pages) * Service Record Documents (27 pages) * Authorized Awards Replacement Letter * Private Medical Documents (4 pages) * Department of Veterans Affairs (VA) Veterans Center diagnosis of post-traumatic stress disorder (PTSD) * VA Benefits Denial Letters (7 pages) * VA Board of Veterans Appeals Denial (11 pages) * 5 Letters of Support 4. The VA electronic medical record, the Joint Legacy Viewer (JLV), was reviewed. JLV contains Behavioral Health diagnoses of Opioid Dependence, Other Adjustment Reaction, and PTSD. The applicant included three private medical statements showing his treatment for diabetes and his successful drug addiction treatment. A statement from a Veterans Center, dated 27 September 2019, notes the applicant was diagnosed with PTSD in 1987 and was still participating in group therapy. Additionally, the applicant details his experience in Vietnam which demonstrates that the etiology of his PTSD and subsequent drug usage more than likely resulted from his military experience. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's and counsel's statements, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA BH Advisor. The Board found insufficient evidence of in-service mitigating factors and, although the Board concurred with the conclusion of the medical advising official regarding his PTSD and drug usage more than likely resulted from his military experiences, the Board did not find that PTSD would have mitigated the offenses of selling and attempting to transfer a habit forming drug while serving in a combat zone. Based on a preponderance of evidence, the Board determined that the decision not to affirm the applicant's upgraded character of service was not in error or unjust, and the reason and authority for his discharge were also not in error or unjust. 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 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 for correction of the records of the individual concerned. 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, USC, 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. 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 that 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides 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. 4. The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. 5. Public Law 95-126 was enacted in October 1978. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration of all discharges previously upgraded under the DoD SDRP was required using these uniform standards. Individuals whose DoD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DoD SDRP review. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g. conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], 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. 7. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. 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 (TBI), 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 8. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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. 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.) AR20200002649 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont.) AR20200002649 13 ABCMR Record of Proceedings (cont.) AR20200002649 11