ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  22 October 2021 DOCKET NUMBER:  AR20200005958 


APPLICANT REQUESTS: 

.an upgrade of his under other than honorable conditions discharge

.a personal appearance before the Board



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 















































•DD Form 149 (Application for Correction of Military Record)•Counsel Statement•Two Department of Veterans Affairs (VA) Letters•Compensation and Pension Examination Report•Social and Industrial Survey•DA Form 2281-2 (Application for Determination of Moral Eligibility for Enlistment)•Two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)•Five DA Forms 2166-4 (Enlisted Efficiency Report)•Two Letters of Commendation•Two Letters of Appreciation•DA Form 2166-5 (Enlisted Evaluation Report)•General Orders Number 10079 (Army Good Conduct Medal)•Two Letters from the Applicant to the VA•Two Letters of Support from T__•Article, Battle of the IA Drang Valley, 1965•Civilian Medical Records•Two USAREC Forms 10 (Enlisted Evaluation Data Report)•Four DD Forms 293 (Application for the Review of Discharge or Dismissal) with Previous Statement•Record of Authorization for Search Summarized Record of Article 32 Session•Memorandum, subject:  Request for Discharge for the Good of the Service•Memorandum, subject:  Letter of Debarment•Undesirable Discharge Certificate•Letter to the Applicant from the Adjudication Officer•Letter of Employment


.Letter of Support

.Six Letters from the Army Discharge Review Board (ADRB) AcknowledgingReceipt

.Letter to the American Legion

.Letter from the American Legion

.Congressional Correspondence

.Letter to the National Veterans and Legal Service Program from the Applicant

.DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (PersonnelQualification Record – Part II)

.VA Correspondence



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states his 1969 other than honorable conditions discharge and his1996 discharge review were made without consideration of his service-related post-traumatic stress disorder (PTSD). His PTSD was diagnosed in 2010 and was the resultof his Army combat service during two tours in Vietnam. His discharge was for a singledrug possession charge, which he was using to self-medicate for his PTSD symptoms.The applicant, through counsel, states:

3.Counsel states:

a.The applicant served honorably for over 11 years. He was an excellent Soldierwho rose quickly through the ranks, but struggled with PTSD. He has lived with his other than honorable conditions discharge that should have been mitigated by the behavioral effects of PTSD. In accordance with the guidance promulgated from the Office of the Secretary of Defense on 3 September 2014, 24 February 2016, and  25 August 2017, the applicant respectfully requests an upgrade. 

b.The applicant is now a 74-year-old Vietnam combat veteran living in AZ. For thepast 10 years, he has led a productive life with his family, in part, because of the PTSD treatment he has received through the VA since 2010.  

c.In 1976, an informant told the applicant’s commander that he had seen theapplicant with a jar containing “speed” in his apartment. After a jar of methamphetamine, some marijuana, and associated paraphernalia were discovered in his home, the applicant was arrested for violating a general regulation and the UCMJ. On the advice of counsel, the applicant voluntarily accepted discharge under other than 
honorable conditions. He accepted this discharge because his counsel had told him if he accepted it, he would not lose his VA benefits, but if he did not do so, he would undergo a court-martial and then “go to jail.” His counsel gave him incorrect information and he spent the next several years trying to receive benefits. 

























3.The applicant provides:•Two Department of Veterans Affairs (VA) Letters, which show the applicant was granted 10% disability for his right knee on 4 January 1999 and 70% for PTSD; 20% for agent orange on 3 February 2010•Compensation and Pension Examination Report, which shows his initial evaluation for PTSD•Social and Industrial Survey, which shows his interview for psychosocial data for PTSD symptoms•DA Form 2281-2 (Application for Determination of Moral Eligibility for Enlistment), which shows his moral waiver was granted on 19 August 1963•Two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), which shows he accepted nonjudicial punishment on 21 May 1969 and 12 November 1971 for missing movement and speeding, respectively [Note:  This was prior to his last enlistment]•Five DA Forms 2166-4 (Enlisted Efficiency Report), which show his conduct and efficiency while serving as an aviation mechanic•Two Letters of Commendation, which show he was recognized as a platoon sergeant and as an administrative clerk/instructor•Two Letters of Appreciation, which show he was recognized for his support during attendance at a school and his duties as a clerk•DA Form 2166-5 (Enlisted Evaluation Report), which show his duty performance and conduct as an instructor•General Orders Number 10079 (Army Good Conduct Medal), which awarded him the Army Good Conduct Medal for the period 5 August 1971 to 4 August 1974•Two Letters from the Applicant to the VA, which show he requested compensation for his PTSD and other service-related injuries•Two Letters of Support from T__ (Applicant’s Commander), which state the applicant was part of his forward observer section from 2 July 1965 to 14 July1968; he also noted the applicant saw “substantial combat operations in …. Vietnam” 

.Article, Battle of the IA Drang Valley, 1965, which shows his unit [1st CavalryDivision] was tangled with the North Vietnamese army for the first time

.Civilian Medical Records, which show a record of his appointments, treatments,and medications

.Two USAREC Forms 10 (Enlisted Evaluation Data Report), which show hisratings and review by his commander


.Record of Authorization for Search, which shows his commander identifiedprobable cause the applicant was in possession of approximately 100 grams ofpurposed “speed”

.Summarized Record of Article 32 Session, which shows the transcript of theArticle 32 hearing conducted on the applicant

.Letter to the Applicant from the Adjudication Officer, which shows thedetermination for character of discharge was unfavorable and found to havebeen issued under conditions which constitute a bar to the payment of VAbenefits

.Letter of Employment, which shows the applicant was employed by an AirService as an Airframe and Powerplant Mechanic for over a year

.Letter of Support, which states the applicant exhibits a strong sense of concernfor doing the right thing even if it may cause increased stress

.Letter to the American Legion, which shows the applicant was dissatisfied withhis interview and the manner of the interviewer

.Letter from the American Legion, which shows his case had been reviewed anddiscusses each injury (PTSD, knee, and tinnitus) in detail

.Congressional Correspondence, which shows he sought assistance from hisCongressional Representative for his discharge upgrade

.Letter to the National Veterans and Legal Service Program from the Applicant,which shows he requested assistance after his upgrade request had been denied

.VA Correspondence, which shows he had been treated by the VA for PTSD,applied to the VA for compensation, and had been granted service-connecteddisability



4.A review of the applicant’s service records show:

a.He enlisted in the Regular Army (RA) on 26 August 1963.

b.He received a DD Form 214 (Armed Forces of the United States Report ofTransfer or Discharge) for the following periods of service: 

.26 August 1963 to 24 April 1966 (Honorable), he completed 2 years,7 months, and 25 days of active service, including service in Vietnam from16 August 1965 to 2 September 1966

.25 April 1966 to 22 June 1969 (Honorable), he completed 3 years, 1 month,and 29 days of active service, including service in Vietnam from 1 February1968 to 22 June 1969

.5 August 1971 to 2 May 1974 (Honorable), he completed 2 years, 8 months,and 10 days of active service



c.He reenlisted in the RA on 3 May 1974.

d.He served in Germany from 12 April 1974 to 19 October 1976.

e.The complete facts and circumstances surrounding the applicant’s discharge areunavailable for the Board to review. However, his record contains sufficient evidence to summarize the discharge process. 

(1)His record contains a DA Form 268 (Report for Suspension of FavorablePersonnel Action) (FLAG), dated 13 August 1976, which shows the applicant was flagged and states: “SM [Service member] is awaiting trial by General Court-Martial for violation of Articles 82 and 134, UCMJ, for possession of Hashish and amphetamines.” 

(2)Excerpt of DD Form 458 (Charge Sheet), specifically page 3, which outlinesthe charges and/or specifications the applicant was charged with for violating the UCMJ. This document shows the applicant was charged with: 

.one specification of possessing a controlled substance

.one specification of possessing marijuana paraphernalia



(3)On 20 September 1976, after consulting with counsel, the applicantrequested discharge in lieu of trial by courts-martial in accordance with Chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the charges preferred against him under the UCMJ. He acknowledged: 

.he was guilty of one of more of the charges, or lesser included offenses

.he did not desire further rehabilitation and had no desire to perform furthermilitary service

.if his request was accepted, he may be discharged under conditions otherthan honorable

.he would be deprived of many or all Army benefits, may be ineligible for manyor all benefits administered by the VA, may be deprived of his rights andbenefits as a veteran under both Federal and State law

.he may expect to encounter substantial prejudice in civilian life because of anunder other than honorable conditions discharge



(4)On 21 October 1976, the applicant was notified that he was ordered not toreenter or be found within the limits of Fort Dix, NJ. 

f.On 21 October 1976, he was discharged. His DD Form 214 shows he wasdischarged under the provisions of Chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. He completed 2 years, 5 months, and 19 days of active service, and had 8 years, 6 months, and 4 days of prior active service. It also shows he was awarded or authorized: 

.National Defense Service Medal

.Vietnam Service Medal

.Presidential Unit Citation

.Vietnam Campaign Medal

.Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

.two overseas service bars

.Republic of Vietnam Gallantry Cross with Palm Unit Citaiton



5.The applicant applied to the Army Discharge Review Board (ADRB) for an upgradeof his under other than honorable conditions characterization of service. On30 December 1996, the ADRB denied his request and determined he was properly andequitably discharged.

6.By regulation:

a.A Soldier who has committed an offense or offenses, the punishment for whichunder the UCMJ, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. 

b.Applicants are not entitled to a hearing before the Board; however, the requestfor a hearing may be authorized by a panel of the Board or by the Director of the ABCMR. 

7.In reaching its determination, the Board can consider the applicant’s petition and hisservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

8.MEDICAL REVIEW:

a.The Army Review Board Agency (ARBA) Medical Advisor reviewed thesupporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is service connected for combat related PTSD. Per liberal consideration, and the association between trauma and substance use, the applicant’s basis for separation is mitigated. Accordingly, an upgrade is recommended. 

b.The applicant was discharged on 21 October 1976 under Chapter 10, In Lieu ofTrial by Court Martial, with an Under Other than Honorable characterization. The basis for separation was possession of a controlled substance and marijuana paraphernalia. The applicant is requesting a characterization upgrade asserting combat related PTSD contributed to his drug use and separation. 
c.Due to the period of service, electronic active duty medical records are void.

d.The applicant is 70% service connected for combat related PTSD. In May 2010,the applicant was hospitalized due to depression with discharge diagnoses of PTSD, Major Depressive Disorder (MDD) and Polysubstance Abuse. The applicant reported previous behavioral health care with a break in services until 2010. The applicant noted cocaine, marijuana, and amphetamine use; however, he had been sober since 1990. The applicant reported his mother was Schizophrenic and his stepfather and family took care of him; however, he was never sure when he’d eat and stole clothes to stay warm. The applicant left home and lived with his father at age 10 after his mother chased him with a butcher knife. He then left his father’s home and dropped out of school in 10th grade after his father began abusing him. Additionally, the applicant reported sexual abuse by a family member. In October, the applicant had a Compensation and Pension (C&P) exam reporting he used drugs to manage trauma and distress leading to his discharge. The applicant reported a 1980’s hospitalization for trauma symptoms. The provider diagnosed PTSD and MDD. In March 2011, the applicant started PTSD treatment. The applicant has continued with medication and therapy. 

e.The applicant submitted various medical records and VA compensation examsaligning with the medical records reviewed. 

BOARD DISCUSSION: 

1.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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.

2.After reviewing the application and all supporting documents, the Board found thatrelief was warranted.  The Board carefully considered the applicants request, supportingdocuments, evidence in the records, a medical review, and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered the applicant'sstatement, his record of service, the frequency and nature of his misconduct, the reasonfor his separation and whether to apply clemency.  Based upon a preponderance ofevidence, the medical reviewer’s findings, and guidance for consideration of dischargeupgrade requests, the Board determined that the character of service the applicantreceived upon separation should be corrected as a matter of clemency.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XX :XX :XX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 21 October 1976 showing his character of service as 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 ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice.  This provision of law also allows the ABCMR to excuse an applicant's failureto timely file within the 3-year statute of limitations if the Army Board for Correction ofMilitary Records (ABCMR) determines it would be in the interest of justice to do so.

2.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, sets forth the basic authority for the separation of enlisted personnel.

 a.  Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. 
 
 b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  Chapter 10 (Discharge for the Good of the Service) states an individual who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 
 
3.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  
 
 a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.   
 
 b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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.  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 under other than honorable conditions, 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.  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; TBI; 
sexual assault; sexual harassment.  Boards were directed 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 that misconduct which led to the discharge. 
 
6.  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.  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.  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 based on 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//