IN THE CASE OF: BOARD DATE: 9 August 2021 DOCKET NUMBER: AR20200004834 APPLICANT REQUESTS: reconsideration to upgrade his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Transfer or Discharge) * Self-written statement * Town of Veterans Park Memorial Dedications program * Town Clerk letter stating applicant was elected mayor of the town and a member of town council * Character reference letters from his family, pastor, friends and associates 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 Number AC97-09756 on 6 May 1998. 2. The applicant states: a. Most of 1968, he was the driver for the 11th Battalion Commander of the 3rd Infantry Training Brigade at Fort Jackson, South Carolina. He was deployed to Vietnam in early 1969. He was assigned to B Co 2nd Battalion 18th Infantry 1st Infantry Division. He never hesitated or refused to do the duties assigned to him while he was in Vietnam. Whether it was walking point, radio operator, machine gun team or other assignments, he always strived to do his best to accomplish the mission. b. He knows now he made a bad mistake by getting married in 1968. There were problems in his marriage from the start. He was sent home twice from Vietnam on emergency leave. The first time he went home, he applied for a compassionate reassignment and it was denied. He then followed orders and returned to Vietnam. Sometime later he was sent home for the second time in the latter part of August on emergency leave. He had been experiencing some bad headaches, anxiety and nervous issues prior to going home the second time. When he got home everything with his marriage was a disaster. His wife had left and he did not know where she was at the time. He was a nervous wreck and did not know where to turn or what to do. He did not return to Vietnam when his leave was up. He went absent without leave (AWOL) hoping he could get his mind back on track. c. Things went downhill and he was continuing to have bad dreams and emotional problems. He turned himself in and stated the problems he was having. He was offered no mental health counseling. He felt like he was in a box with no way out. He was offered to go back to Vietnam or accept a Chapter 10 (undesirable discharge). He chose to accept the Chapter 10, which he regrets today. This was the only option that he felt he had at the time. He was not in a mental state to perform any duties in Vietnam. d. He had some AWOLS prior to 1969, due to immaturity and being young, but please note that he had no AWOLS in 1969 prior to his decision not to go back to Vietnam. These were the bulk of his AWOLS. e. The marriage he had when he was in service was never reconciled and ended in divorce. He was fortunate enough to meet his present wife of almost 47 years in 1972. His wife observed things about his behavior and they both knew something was wrong. He started having issues with not sleeping, night sweats, bad dreams and headaches. Something had to be done. He started seeing . He ran a lot of test to find out what was wrong. The final test was a brain scan and this showed it was nothing physical. He was diagnosed with Post Traumatic Stress Disorder (PTSD). After several medications, he was put on Limbitrol and have taken this medication since the 1970s. It helped him function more normal and he started doing things like coaching baseball (as him and his wife had three sons), and getting involved in their church. He later got into town politics and have served for a number of years. He tries to be an example to others by always supporting the military and Country. He is proud of the honorable service that he gave his Country. f. Earlier in his life, he made mistakes and bad decisions that he now fully regrets. Through his lessons learned, he has tried to raise his three sons to do different than he had done. All three are veterans and he is very proud of them. As the Board looks at his request for an upgrade to his discharge, please consider the following: * he had 2 years and 21 days of honorable service to his country * he had symptoms of PTSD when he accepted the Chapter 10 (undesirable) * he was diagnosed with PTSD and has taken the same medication for over 40 years and still have issues at times * The Hagel Memo 3. In connection with the applicant’s enlistment in the Regular Army, an application for determination of moral eligibility for induction was submitted. In March 1964, at the age of 16, the applicant was charged with the offense of “non-felonious breaking and entering”. He was sentenced and placed on probation for 24 months. The applicant’s waiver of civil offenses was approved on 22 June 1967. 4. On 25 July 1967, the applicant entered the Regular Army for a period of 3 years at 19 years of age. He completed training requirements and was awarded his military occupational specialty (MOS) 11B (Infantryman). 5. On 29 December 1967, while stationed at Fort Jackson, South Carolina for training the applicant accepted his first non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 20 to 28 December 1967. His punishment for this offense included reduction to the grade of private/E-1 and forfeiture of $35.00 per month for 2 months. 6. On 21 February 1968, the applicant accepted NJP for being AWOL from 17 to 19 February 1968. The resultant punishment included forfeiture of $15.00 per month for 2 months and 15 days of restriction and extra duty. 7. On 16 March 1968, he accepted NJP again for being AWOL from 4 to 6 March 1968. His punishment for this offense was forfeiture of $25.00 per month for 2 months and 25 days of restriction. 8. On 16 November 1968, Headquarters, U.S. Army Training Center, Fort Jackson, South Carolina published Special Orders Number 282 announcing the applicant had returned from being AWOL and dropped from his unit’s rolls. He was presently confined in the Post Stockade effective 9 November 1968. 9. On 20 November 1968, the applicant was arraigned, tried and convicted by special court-martial for two specifications of violation of Article 86 for being AWOL. The first specification was for an AWOL period from 19 September to 2 October 1968. The second specification was for being AWOL from 3 October to 10 November 1968. He was found guilty of the charge and both specifications and was sentenced to be confined at hard labor for 6 months; to forfeit $46.00 per month for 6 months; and to be reduced to private/E-1. 10. On 21 November 1968, the applicant’s court-martial sentence was approved and ordered duly executed but the execution of the portion adjudging confinement at hard labor for 6 months was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. 11. His Enlisted Qualification Record shows he was assigned and served in the Republic of Vietnam from or about March to October 1969. In pertinent part, it also shows he was AWOL from 1 September to 5 October 1969, 21 to 30 October 1969, and 6 November to 7 December 1969. 12. The evidence of record indicates that a court-martial charge was preferred against the applicant for violation of Article 86 with three specifications of being AWOL. 13. On 11 December 1969, the applicant voluntarily requested to be discharged for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). a. This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of an undesirable discharge. He elected not to submit statements in his own behalf. b. The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under State and Federal law. c. His chain of command recommended approval of his request to be discharged. On 16 January 1970, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate. d. On 28 January 1970, the applicant was medically cleared for chapter 10 separation actions. 14. On 30 January 1970, the applicant was discharged accordingly. The DD Form 214 he signed for shows he was discharged under the provisions of chapter 10, AR 635- 200, for the good of the service in lieu of trial by court-martial. His character of service was listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. He completed 2 years and 21 days of net active military service and he had 165 days of time lost due to AWOL and confinement. The applicant was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Expert Qualification Badge with M-14 rifle bar * Marksman Qualification Badge with M-16 rifle bar 15. On 6 May 1998, the ABCMR voted unanimously to deny the applicant’s request for an upgrade of his discharge. The Board notes on his previous application he neither claimed nor mentioned that he went AWOL and voluntarily requested a Chapter 10 discharge based in whole or in part on his mental health conditions. He stated he refused to return to Vietnam because his request for compassionate reassignment was denied, and also based on his wife’s suicidal tendencies and instability. 16. On 13 November 2020, the Army Review Boards Agency (ARBA), Case Management Division requested the applicant provide a copy of the medical documents that supported his issue of Post-Traumatic Stress Disorder (PTSD). He did not respond. 17. In support of his case, the applicant provided the documents listed above under the applicant's supporting documents considered by the Board. The documents will be reviewed and considered by the Board and the ARBA medical staff. 18. The applicant's record documents no individual acts of valor, achievement, or service warranting special recognition. His record indicates he never advanced beyond the rank of private/E-2 and shows an extensive record of AWOL related disciplinary infractions which resulted in the applicant accepting NJP, under the provisions of Article 15 of the UCMJ, on 3 separate occasions. He was also arraigned, tried and convicted by special court-martial for being AWOL prior to being deployed to Vietnam. Furthermore, his record shows he again went AWOL on several occasions and was confined even after being convicted by court-martial for being AWOL on multiple occasions. 19. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 20. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 21. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) 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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 22. The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that 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 mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 23. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 24. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for reconsideration to upgrade his undesirable discharge to honorable. b. The applicant states: (1) Most of 1968, he was the driver for the 11th Battalion Commander of the 3rd Infantry Training Brigade at Fort Jackson, South Carolina. He was deployed to Vietnam in early 1969. He was assigned to B Co 2nd Battalion 18th Infantry 1st Infantry Division. He never hesitated or refused to do the duties assigned to him while he was in Vietnam. Whether it was walking point, radio operator, machine gun team or other assignments, he always strived to do his best to accomplish the mission. (2) He knows now he made a bad mistake by getting married in 1968. There were problems in his marriage from the start. He was sent home twice from Vietnam on emergency leave. The first time he went home, he applied for a compassionate reassignment and it was denied. He then followed orders and returned to Vietnam. Sometime later he was sent home for the second time in the latter part of August on emergency leave. He had been experiencing some bad headaches, anxiety and nervous issues prior to going home the second time. When he got home everything with his marriage was a disaster. His wife had left and he did not know where she was at the time. He was a nervous wreck and did not know where to turn or what to do. He did not return to Vietnam when his leave was up. He went absent without leave (AWOL) hoping he could get his mind back on track. (3) Things went downhill and he was continuing to have bad dreams and emotional problems. He turned himself in and stated the problems he was having. He was offered no mental health counseling. He felt like he was in a box with no way out. He was offered to go back to Vietnam or accept a Chapter 10 (undesirable discharge). He chose to accept the Chapter 10, which he regrets today. This was the only option that he felt he had at the time. He was not in a mental state to perform any duties in Vietnam. (4) He had some AWOLS prior to 1969, due to immaturity and being young, but please note that he had no AWOLS in 1969 prior to his decision not to go back to Vietnam. These were the bulk of his AWOLS. (5) The marriage he had when he was in service was never reconciled and ended in divorce. He was fortunate enough to meet his present wife of almost 47 years in 1972. His wife observed things about his behavior and they both knew something was wrong. He started having issues with not sleeping, night sweats, bad dreams and headaches. Something had to be done. He started seeing Dr. RW. He ran a lot of test to find out what was wrong. The final test was a brain scan and this showed it was nothing physical. He was diagnosed with Post Traumatic Stress Disorder (PTSD). After several medications, he was put on Limbitrol and have taken this medication since the 1970s. It helped him function more normal and he started doing things like coaching baseball (as him and his wife had three sons), and getting involved in their church. He later got into town politics and have served for a number of years. He tries to be an example to others by always supporting the military and Country. He is proud of the honorable service that he gave his Country. (6) Earlier in his life, he made mistakes and bad decisions that he now fully regrets. Through his lessons learned, he has tried to raise his three sons to do different than he had done. All three are veterans and he is very proud of them. As the Board looks at his request for an upgrade to his discharge, please consider the following: * he had 2 years and 21 days of honorable service to his country * he had symptoms of PTSD when he accepted the Chapter 10 (undesirable) * he was diagnosed with PTSD and has taken the same medication for over 40 years and still have issues at times * The Hagel Memo c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Transfer or Discharge) * Self-written statement * Town of Veterans Park Memorial Dedications program * Town Clerk letter stating applicant was elected mayor of the town and a member of town council * Character reference letters from his family, pastor, friends and associates d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 25 July 1967 and was discharged on 30 January 1970, the applicant was discharged accordingly. The DD Form 214 he signed for shows he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. His character of service was listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. g. On 29 December 1967, while stationed at Fort Jackson, South Carolina for training the applicant accepted his first non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 20 to 28 December 1967. His punishment for this offense included reduction to the grade of private/E-1 and forfeiture of $35.00 per month for 2 months. h. On 21 February 1968, the applicant accepted NJP for being AWOL from 17 to 19 February 1968. The resultant punishment included forfeiture of $15.00 per month for 2 months and 15 days of restriction and extra duty. i. On 16 March 1968, he accepted NJP again for being AWOL from 4 to 6 March 1968. His punishment for this offense was forfeiture of $25.00 per month for 2 months and 25 days of restriction. j. On 20 November 1968, the applicant was arraigned, tried and convicted by special court-martial for two specifications of violation of Article 86 for being AWOL. The first specification was for an AWOL period from 19 September to 2 October 1968. The second specification was for being AWOL from 3 October to 10 November 1968. He was found guilty of the charge and both specifications and was sentenced to be confined at hard labor for 6 months; to forfeit $46.00 per month for 6 months; and to be reduced to private/E-1. k. On 21 November 1968, the applicant’s court-martial sentence was approved and ordered duly executed but the execution of the portion adjudging confinement at hard labor for 6 months was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. l. His Enlisted Qualification Record shows he was assigned and served in the Republic of Vietnam from or about March to October 1969. In pertinent part, it also shows he was AWOL from 1 September to 5 October 1969, 21 to 30 October 1969, and 6 November to 7 December 1969. m. The evidence of record indicates that a court-martial charge was preferred against the applicant for violation of Article 86 with three specifications of being AWOL. n. On 11 December 1969, the applicant voluntarily requested to be discharged for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). o. On 28 January 1970, the applicant was medically cleared for chapter 10 separation actions. p. On 6 May 1998, the ABCMR voted unanimously to deny the applicant’s request for an upgrade of his discharge. The Board notes on his previous application he neither claimed nor mentioned that he went AWOL and voluntarily requested a Chapter 10 discharge based in whole or in part on his mental health conditions. He stated he refused to return to Vietnam because his request for compassionate reassignment was denied, and also based on his wife’s suicidal tendencies and instability. q. On 13 November 2020, the Army Review Boards Agency (ARBA), Case Management Division requested the applicant provide a copy of the medical documents that supported his issue of Post-Traumatic Stress Disorder (PTSD). He did not respond. r. JLV does not contain any Behavioral Health diagnoses. s. The applicant, as mentioned above, did not supply any medical records or documentation to support his claim of PTSD. The applicant stated in his self-authored statement that, “He was diagnosed with Post Traumatic Stress Disorder (PTSD). After several medications, he was put on Limbitrol and have taken this medication since the 1970s.” by Dr. Raymond Wallace. The applicant did not include in his application these medical records which would potentially demonstrate a PTSD diagnosis stemming from his military service. t. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnosis. The applicant met retention standards at the time of discharge. Under liberal guidance, the applicant does not have any mitigating factors for his misconduct (AWOL). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of PTSD, post-service achievements, or letters of reference in support of a clemency determination. 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. 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 to amend the decision of the ABCMR set forth in Docket Number AC97-09756 on 6 May 1998. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 3. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200004834 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1