ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2021 DOCKET NUMBER: AR20200007587 APPLICANT REQUESTS: The applicant requests an upgrade of his character of service from under other than honorable conditions to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge x2) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 after serving in Vietnam he was really messed up, due to the war and because of the treatment he received at the hands of his fellow citizens. 3. He served honorably in the Regular Army (RA) from 8 May 1968 to 24 February 1969. During this period of service, he was absent without leave (AWOL) from 8 to 9 August 1968. He also accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed on 3 September 1968. His punishment consisted of 14 days of extra duty and restriction. 4. On 25 February 1969, he reenlisted in the RA for 3 years with a waiver. He held military occupational specialty (MOS) 05B (Radio Operator). He served in Vietnam from 23 May 1969 to 25 April 1970 with: * Company C, 125th Signal Battalion, 25th Infantry Division from 2 June to 19 August 1969 1 * Company B, 125th Signal Battalion, 25th Infantry Division from 20 August 1969 to 24 April 1970 5. He was assigned to Fort Leonard Wood, MO, with duties in his MOS O5B on 2 June 1970 6. On 16 October 1970, he accepted NJP under Article 15, of the UCMJ for failing to go to his appointed place of duty at the time prescribed. His punishment consisted of 10 days of extra duty. According to a Disposition Form 2496-1 he was AWOL again from 1 January 1971 to 7 February 1972 until he surrendered to military control in Indianapolis. He was assigned to the United States Army Personnel Control Facility (PCF), Fort Leonard Wood, MO, on 8 February 1972. 7. On 18 February 1972, he underwent a medical examination and he was determined to be qualified for separation. 8. A Report of Psychiatric Evaluation from Mental Hygiene Consultation Service, Fort Leonard Wood, dated 29 February 1972, shows he was diagnosed with passive - aggressive personality disorder – severe. a. Findings: * Yes - Individual does meet the retention standards as prescribed in chapter 3, Army Regulation (AR) 40-501 * Yes - There are no disqualifying mental or physical defects sufficient to warrant disposition through medical channels under the provisions of AR 635-40 * No - Individual has severe character and behavior disorder with distinct violent tendencies; i.e., homicidal or suicidal in nature. AR 190-10 does/does not apply * Yes - Individual has severe character and behavior disorder with no violent tendencies, but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective Soldier * No - It is believed that individual will adjust to further military service and further rehabilitative efforts will probably be productive * Yes - Individual was and is responsible, both to distinguish right from wrong and adhere to the right, and has the mental capacity to understand and participate in board proceedings * Yes - Individual is cleared for any administrative decision deemed appropriate by the command b. Comments: Large amount of AWOL time and personality disorder make enlisted man incapable of completing duty. Recommend separation. 9. The applicant’s service record does not include all of the facts and circumstances surrounding his discharge process. The charge sheet and the applicant’s request for discharge are not available for review with this case. However, his record does contain: a. The applicant’s PCF commander’s letter, subject: Request for Discharge for the Good of the Service stating the applicant had demonstrated to his immediate supervisor that he was unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile. The discharge action was considered to be for the good of the service. * He had been interviewed and in view of his statements, demeanor and attitude, it was believed the discharge would be in the best interest of the service * He was presently pending trial for being AWOL on one occasion totaling 402 days; he had two prior periods of AWOL totaling 18 days, and received one Article 15 for failure to repair * The recommendation was that he be issued an Undesirable Discharge Certificate b. The applicant’s intermediate commander recommended approval of his request. c. On 2 March 1972, the appropriate approval authority approved the applicant’s request for discharge for the good of the service. This document is stamped original signed. 10. A DD Form 214 that was prepared at the time of separation shows on 8 March 1972, he was discharged in pay grade E-1. He had completed 2 years, 2 months, and 22 days of net active service this period. He had also completed 9 months and 15 days of other service. His DD Form 214 shows in: * (Reason and Authority), “Chapter 10, AR 635-200, SPN 246” * (Character of Service), Under Other Than Honorable Conditions * (Foreign and/or Sea Service (USARPAC Vietnam)), 11 months and 18 days * (Awards and Decorations), Vietnam Service Medal with three Bronze Service Stars, Republic of Vietnam Campaign Medal with 1960 Device, Sharpshooter Marksmanship Qualification Badge Rifle Bar (M-14), Overseas Service Bar two, Army Commendation Medal, * (Remarks) 295 days of lost time and “Vietnam 23 May 1969 to 25 April 1970, Indo-China YES, Korea-NO” 11. His record contains orders for a second award of the ARCOM that is not listed on his DD Form 214. a. General Orders 14777, Headquarters 25th Infantry Division, dated 29 November 1969 awarded him the ARCOM for meritorious achievement in connection with military operations against a hostile force from 1 September to 31 October 1969. b. General Orders 3395, Headquarters 25th Infantry Division, dated 28 March 1970 awarded him the ARCOM for meritorious achievement in connection with military operations against a hostile force from May 1969 to May 1970. c. His record contains Revocation General Orders 7431, dated 1 June 1969, for an ARCOM, that does not belong to the applicant. 12. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam. This pamphlet shows: a. Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. b. The 25th Infantry Division, was cited for award of the Republic of Vietnam Civil Actions Honor Medal, First Class for the period 1 January 1966 through 21 January 1970, by Department of the Army General Order Number 51, dated 1971. 13. The applicant's record is void of the specific facts and circumstances surrounding his discharge process; however, based on the available evidence, he would have been charged for the commission of an offense(s) punishable under the UCMJ with a punitive discharge. 14. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. 15. The applicant service record contains a psychiatric evaluation showing he was diagnosed with a passive - aggressive personality disorder – severe, on 29 February 1972. 16. Army Regulation 40-501 specifically states that individuals who are diagnosed with a personality disorder that interferes with the performance of effective duty in association with this condition will be dealt with through administrative channels. The applicant was determined to be administratively unfit and therefore not unfit due to a physical disability. Therefore, he was processed for discharge through the appropriate administrative channels. 17. Army Regulation 635-200 provides the administrative channel through which those individuals who are diagnosed with a personality disorder are discharged from the Army. 18. There is no evidence that he had a medical condition which would have warranted him being considered by a Medical Evaluation Board (MEB). Without an MEB, there would have been no basis for referring him to a PEB. Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness. 19. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would have jeopardized his rights. 20. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. 21. The available evidence shows the applicant completed 2 years, 2 months, and 22 days of his enlistment obligation and 11 months and 2 days were served in Vietnam. He also had 295 days of lost time. 22. In reaching its determination, the Board can consider the applicant’s petition, Vietnam service, behavioral health evaluation, and his service record in accordance with the published equity, injustice, or clemency guidance. 23. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the VA's Joint Legacy Viewer (JLV). There were no records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or the Health Artifacts Image Management Solutions (HAIMS) due to the age of the case. The applicant requests a discharge upgrade from Other Than Honorable to General. He stated that after serving in Vietnam, he was really messed up because of the treatment he received by his fellow citizens. b. JLV search showed the applicant first started being seen at the VA in 2019. JLV search also showed that he is service connected by the VA for the following disabilities: Stricture of Esophagus (30%); Paralysis of Musculospiral Nerve (20%); Paralysis of Musculospiral Nerve (20%); Paralysis of Sciatic Nerve (10%); TIinnitus (10%); Paralysis of Sciatic Nerve(10%); Irritable Colon (0%); Paralysis of Eleventh Cranial Nerve (0%); Paralysis of Eleventh Cranial Nerve (0%); Paralysis of Eleventh Cranial Nerve (0%); Loss of Smell (0%); Paralysis of Seventh Cranial Nerve (0%); Impaired Hearing (0%); and Deformity of the Penis (0%). There were no in-service treatment records available for review. The 18Feb1972 Report of Medical History for separation showed a normal physical exam. He received PULHES 111121 for an eye condition. His 24Oct1966 Induction Exam showed that he had ‘eye trouble’ prior to enlistment for which he wore glasses. The eye injury mentioned below in paragraph #3 was not documented. He was deemed qualified for separation. In the Report of Medical History, the applicant endorsed dizziness or fainting; eye trouble; cramps in his legs; and nervous trouble. c. There were no in-service behavioral health treatment records. The 29Feb1972 Report of Psychiatric Evaluation revealed that the applicant was diagnosed with Passive Aggressive Personality Disorder, Severe. He was assessed to have a severe character and behavior disorder with no violent tendencies. He was not thought to be amenable to further rehabilitative efforts. He was determined to meet retention standards of AR 40-501, chapter 3. It was indicated that his Passive Aggressive Personality Disorder, Severe condition rendered him incapable of completing duty. AFTER service, a 30Nov2020 VA C&P Mental Disorders DBQ revealed that the applicant served in Vietnam for 1 year (23May1969 to 25Apr1970). He was in Saigon and was placed on a mountain and his job was to keep 2 generators from running out of gas. He stated he received a medal. He slept between the generators. He had top security clearance and controlled all the radio operations from Washington to Saigon. He stated they were over run every once in a while. On one occasion he received shrapnel to the left eye. The medic pulled it out. It was never recorded. The examiner annotated that he described events as an interesting story indicating good memory and intact cognitive functioning, but without accompanying mental health symptoms that would indicate a mental health disorder. Of note, during a Social Work visit while hospitalized in 2020, he relayed the following information in a similarly stoic fashion: A ‘blister’ type lesion had called for the amputation of the tip of his left toe. Problems with healing due to blood flow issues led next to amputation of the entire toe, followed next by removal of the entire left foot, and finally the left leg to just below the knee. At the same time, he was imploring to be discharged from the hospital as soon as possible because he was his wife’s caregiver. He did disclose that during service, he drank continually with his friends both while abroad and stateside. After serving abroad he was dissatisfied with stateside duty. The advocate from Johnson County Veterans that was assisting him with the pursuit of a discharge upgrade (due to PTSD) died. He was told that he had a “damn good record” until he got back from Vietnam. Despite the dishonorable discharge, he was deemed entitled to VA benefits because he “successfully completed the two-year period for which he was originally drafted and was therefore considered to have been unconditionally discharged under honorable conditions on 07May1970”. The C&P examiner indicated he had no mental health diagnosis meeting DSM-5 criteria. d. The applicant was discharged under provisions of AR 635-200 chapter 10 for the good of the service. According to separation paper work, he was pending trial for being AWOL on one occasion for 402 days. He also had 2 prior periods of being AWOL. He had an approved waiver for lost time during a previous period of service. His reason for going AWOL was to visit his sister who was in the hospital after a serious injury. He also had a failure to report instance (16Oct1970). e. The applicant’s post military adjustment was very good, staying employed without drinking, drug or legal problems. Based on records available for review, the applicant has not been formally diagnosed with PTSD, TBI nor MST (military sexual trauma). However, in the reviewer’s opinion, the applicant’s case does merit some consideration for discharge upgrade for the following reasons: He had a year-long Vietnam deployment; a physical injury (eye trauma) sustained in battle; a drinking problem not present before deployment; and he did report ‘nervous trouble’ documented in his medical discharge paperwork. Therefore, concerning the 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, evidence does reasonably support that there were behavioral health symptoms at the time of his discharge to consider with respect to mitigation of the AWOL offenses which led to his discharge. There was no documentation to support that the applicant had any conditions that failed medical retention standards in accordance with AR 40-501 chapter 3, warranting separation through medical channels. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was warranted. The Board considered the applicant's statement, his record of service, the nature of his misconduct and the reason for his separation. The Board considered the review and conclusions of the medical advising - official. The Board found evidence of mitigating factors for the applicant's misconduct. Based upon a preponderance of evidence, to include the misconduct leading to the applicant’s separation, the applicant’s Vietnam service, and the findings of the medical advisor, the Board concluded there was sufficient evidence to upgrade the applicant’s characterization of service to General, Under Honorable Conditions. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX XX :XX GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 2. The Board also noted the administrative note below from the analyst of record and recommended that change also be completed to more accurately reflect the military service of the applicant. X CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending on 8 March 1972, by adding the Army Commendation Medal (2nd Award), Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal, First Class. 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 635-200 (Personnel Separations – Enlisted Personnel), set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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. 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, 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. 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. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD. Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Paragraph 3-35 (Personality, sexual and gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance- related disorders) provides that these conditions may render an individual administratively unfit rather that unfit because of physical disability. Interference with performance of effective duty in association with these condition will be dealt with through administrative channels. //NOTHING FOLLOWS//