IN THE CASE OF: BOARD DATE: 25 March 2021 DOCKET NUMBER: AR20200009257 APPLICANT REQUESTS: in effect, affirmation of the honorable characterization as upgraded by the Department of Defense (DoD) Discharge Review Program (Special (SDRP)). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter [EXTRACT], United States, Department of Veterans Affairs (VA), dated 6 April 2017 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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, in effect, in 1977 he was granted an honorable instead of under other than honorable character (UOTHC) discharge by the Board under Public Law 95- 126. He received a letter which instructed him to register with the VA for medical benefits and he did so. He was treated by the VA for his diagnosed prostate cancer due to exposure to Agent Orange during his period of service [18 months] in the Republic of Vietnam (RVN). In 2010 he applied for VA compensation for his cancer and erectile dysfunction whereas his UOTHC discharge [DD Form 214] was referenced and each time he reapplied he received the same justification or response. He contends he finally sought assistance through a Member of Congress (Senator) and the VA response he was provided showed under the provisions Public Law 95-126 upgrades of UOTHC were not eligible for VA benefits. He was then removed from the VA medical system. a. He assumed at the time of his discharge upgrade his VA benefits were warranted by the Board's decision. Since being removed from the VA medical system his cancer has returned and he is currently not authorized treatment through the VA. He only has Medicare and no other secondary insurance for medical treatment of his cancer. He also has medical conditions surrounding his exposure to Agent Orange. b. The former Defense Secretary "Chuck Hagel" directed RVN veterans with UOTHC discharges to be upgraded to honorable because PTSD was not recognized at the time of his period of service. However, his discharge upgrade decision was granted prior to the DoD directive. His UOTHC discharge is under the provisions (UP) of Public Law 95-126, which he now has been informed disqualifies him from all VA benefits. c. He has attempted to get screened for PTSD with no results due to being refused by the local VA clinic and not having a medical record in the VA system. d. He believes his discharge dated 21 February 1977 which was upgraded should be reclassified under current programs or guidance UP Defense Secretary "Chuck Hagel" or Army directives ["McHugh's Nov. 3"] to the Army Review Boards Agency, which handles the administrative review of personnel actions and mirrors the September 3, 2014 directive of former Defense Secretary "Chuck Hagel." The memorandum to secretaries of each of the military departments said review boards will fully and carefully consider each petition based on PTSD applications submitted by veterans. He also contends his previous case number AD7X003251A is additional justification for him to receive a DD Form 215 (Correction to DD Form 214). 3. On 27 August 1968, the applicant entered the Regular Army. His DD Form 4 (Enlistment Contract –Armed Forces of the United States), item 25 (Physical Profile), shows "111121B." 4. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 21 May 1969 to 3 December 1970, a period of 1 year, 6 months, and 13 days. This form also shows he was absent without leave (AWOL) from 25 June 1970 to 10 July 1970 (16 days). 5. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 23 January 1971, for failing to go to his appointed place of duty (work formation), on 20 February 1971. 6. The applicant was reported AWOL on 9 April 1971 and subsequently reported as dropped from the rolls (DFR) as a deserter on 8 May 1971. 7. On 14 June 1971, he surrendered himself to military authorities. He indicated that his reason for going AWOL was personal, and that he wanted to complete his tour of duty and separate with a good discharge. 8. On 17 June 1971, court-martial charges were preferred against the applicant. The charge reads, the applicant, "did on or about 9 April 1971, without authority, absent himself from his organization… and did remain so absent until on or about 14 June 1971." 9. The records show the following duty statuses- * on 21 June 1971, the applicant departed AWOL * on 10 August 1971, he was classified as DFR * on 12 November 1971, he surrendered to military authorities * on 12 November 1971 he departed AWOL in desertion * on 30 January 1973, he surrendered to military authorities * on 30 January 1973, he was placed in confinement 10. The applicant's record contains a report of medical history and a report of medical examination, both dated 31 January 1973. These documents show: a. The applicant reported he was in good health, reported frequent or severe headaches, eye trouble (lazy left eye), and severe tooth or gum trouble. He did not report any psychiatric or behavioral health concerns. b. The examining medical official noted all of the examined areas were within normal range, and there were not any notes pertaining to psychiatric or behavioral health concerns. 11. On 1 February 1973, court-martial charges were preferred against the applicant for three specifications of, " without authority, absent himself from his organization" in desertion, during the following periods: * from on or about 9 April 1971 until on or about 14 June 1971 (66 days) * from on or about 21 June 1971 until on or about 12 November 1971 (144 days) * from on or about 12 November 1971 until on or about 30 January 1973 (445 days) 12. On 1 February 1973, after consulting with legal counsel the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial). In his request for discharge, he acknowledged: a. He understood that by requesting discharge, under circumstances that also authorized the imposition of a bad conduct or dishonorable discharge. b. 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 of the procedures and rights that were available to him. c. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 13. On 8 February 1973, the applicant's immediate commander recommended approval of his request in accordance with (IAW) Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate, and forwarded his request to the appropriate approval authority. a. After receipt of the recommendation, the appropriate approval authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with the reason and authority shown as "SPN 246." b. The approval authority directed his discharge with an Undesirable Discharge Certificate. The applicant’s reduction to the lowest enlisted grade UP Army Regulation 600-200 (Enlisted Personnel Management System). 14. On 21 February 1973, the applicant was discharged from the Army under the provisions of Army Regulation 635–200, chapter 10, with an under conditions other than honorable character of service. He completed 2 years, 7 months, and 4 days of creditable active service, of which 1 year, 6 months, and 13 days were credited as foreign service in Vietnam, and he had a total of 691 days lost. This DD Form 214 was later voided by the Army Discharge Review Board (ADRB). 15. His available record is void of evidence showing he was diagnosed with a mental health condition or that he received treatment for any of the aforementioned conditions. 16. On 20 May 1977, the Army Discharge Review Board (ADRB) conducted a review of his case under the provisions of the Department of Defense Special Discharge Review Program (DOD-SDRP). The Board directed that his undesirable discharge (UD) be changed to honorable. Accordingly, his original DD Form 214 was voided and he was reissued a DD Form 214 that shows he received an honorable discharge. 17. On 22 June 1978, the ADRB notified the applicant that his discharge was reviewed under Public Law 95-126, and the characterization of his service (i.e., the characterization he originally received) was warranted under the new uniform standards for discharge review. Accordingly, the ADRB affirmed his discharge under the DOD SDRP. He was further informed that, as the Board's action was favorable, his accessibility to VA benefits would be enhanced if he applied. Finally, his new DD Form 214 contains the following entries: * item 9c (Authority and Reason) - "CH 10 AR 635-200 SPN 246 DOD DISCHARGE REVIEW PROGRAM (SPECIAL) SPD KCR" * item 9e (Character of Service) - Honorable 18. On 1 August 1978, The Office of the Adjutant General, officially notified the applicant that the ADRB affirmed his DOD-SDRP discharge upgrade and he was issued a DD Form 215 to reflect this decision. This correspondence further states: The Veterans Administration (VA) has probably already provided you answers to any questions you may have asked concerning benefits; however, in the event future questions arise, presentation of this DD Form 215 and your DD Form 214 should provide the VA with any information they may require. It is important that you retain and protect this DD Form 215 along with your DD Form 214. Please understand this DD Form 215 in no way changes or modifies the upgraded discharge you previously received. 19. On 12 December 1978, the Office of the Adjutant General, Reserve Components (RC), informed the applicant that records showed his discharge, which was reviewed by the Discharge Review Board since the date 1 April 1977 reflects the Board did not grant him a change or full upgrade of his discharge at the time. A recent court order in Urban Law Institute of Antioch College lnc. v. Secretary of Defense. Civ. Ho. 76-0530 (D.D.C., August 23, 197)) has directed their office inform him about a number of matters, in particular that he might be entitled to a new review of your case and that you can obtain free help in making a decision. a. This new review will be based upon newly published standards in DoD Directive 1332.28, published in the Federal Register on 31 March 1978. b. Right to a new hearing under the Special Discharge Review Program (SDRP) or a new hearing to regain VA benefits. Under certain circumstances he may have a right to a new hearing in your case under the more liberal standards of the SDRP, where he may have a free lawyer to represent you. He may also have a right to a new hearing to get VA benefits that he may have lost if the Discharge Review Board reconsidered your case because of a recent Act of Congress. To be specific, he will have a right to a new hearing if: (1) His case was decided under the Department of Defense's Special Discharge Review Program (application period was April 3, 1977 through October 4, 1977) or was a SDRP case reconsidered after March 27, 1978, as required by Congress; and (2) He did not have a hearing at which he was either present or was represented by counsel or representative. 20. The applicant's record provides a DD Form 215 [Copy 2 and Copy 4], which corrected entries for his DD Form 214, dated 21 February 1973. His DD Form 215 corrected an entry for: * item 9c (Authority and Reason) - "CHAP 10 AR 635-200 SPD: JFS" * item 27 (Remarks) add the remarks - * "DISCH REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHANGE IN CHARACTER OF SERVICE IS WARRANTED BY DOD DIRECTIVE" * "ADMINISTRATIVE DISCHARGE-CONDUCT TRIABLE BY COURT- MARTIAL" * item 27 (Remarks) delete the remark - "UPGRADED UNDER THE DOD DISCHARGE REVIEW PROGRAM (SPECIAL) DATE APPLIED FOR DISCHARGE UPGRADE 6 ARP 77 DATED DISCHARGE UPGRADED: 20 MAY 77 CHARACTER OF SERVICE PRIOR TO UPGRADE: UNDER OTHER THAN HONORABLE CONDITIONS" 21. The applicant does not provide documents or evidence showing he was diagnosed with PTSD. 22. The applicant provides a letter from the VA, dated 6 April 2017, wherein he circles a portion of text stating that his discharge is not considered creditable service for VA purposes and remains a bar to VA benefits. This letter also states; he is not entitled to health care for any disabilities determined to be service connected. 23. The Board should consider all of the applicant's statements and contentions in accordance with the published equity, injustice, or clemency determination guidance. 24. Based on the applicant's contention(s) the Army Review Board Agency medical staff provides a written review of the applicant's medical records, outlined in the "MEDICAL REVIEW" section of this Record of Proceedings. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the and 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 in the Health Artifacts Image Management Solutions (HAIMS), likely due to the age of the case. The applicant stated that he previously had his OTH discharge upgraded in 1977 to Honorable under Public Law 95-126. However, the applicant stated that he was informed by the VA that the upgrade did not entitle him to benefits. So for this application, the applicant is requesting an upgrade due to PTSD. 2. The applicant was discharged under provision AR 635-200, Chapter 10 for the good of the service for being absent without authority from 09 Apr 1971 to 14 Jun 1971; 21 Jun 1971 to 12 Nov 1971; and 12 Nov 1971 until 30 Jan 1973. He also had one instance of failing to report to appointed place of duty (20Feb1971). The record does show that his discharge record was reviewed under the DoD Discharge Review Program and the character of service was change to Honorable (20 May 1977). The applicant’s reason for the AWOL offense was ‘personal’. In the PreHearing Review (Part IV) section of the Discharge Review Board Case Report and Directive, it was stated that the applicant became disillusioned about his military service because of how the Vietnam war was being viewed by the US population in general, and specifically where he lived in College Park, MD near the University of Maryland where he says there was a lot or war protests. 3. 31 Jan 1973 Report of Medical History (separation), the applicant wrote that his health was ‘good’ and endorsed the following symptoms: Frequent or severe headaches; eye trouble (lazy left eye); and severe tooth or gum trouble. Of note, the applicant did not endorse any symptoms consistent with a BH (behavioral health) diagnosis. In the Report of Medical Exam, the examiner documented a ‘normal’ psychiatric exam. The examiner also noted Amblyopia (a developmental impairment in visual acuity). His entrance paperwork did show a 2 level physical profile for the eye (E2). 4. JLV search showed that the applicant was not service connected for any disabilities. He was first seen at the VA for treatment in 2010. In the 09 Mar 2010 Primary Care note, he screened positive for PTSD and Depression. He screened negative for MST (military sexual trauma). He was seen at the VA for Allergic Rhinitis; Chronic Obstructive Pulmonary Disease; Congestive Heart Failure; Elevated Prostate Specific Antigen; Hyperlipidemia; Hypertension; and Prostate Cancer. Although he screened positive for PTSD, the record did not show that he has been diagnosed with PTSD, or any other BH (behavioral health) diagnoses to include TBI. There were no BH visits and he was not on any psychotropic medications. 5. Concerning the 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, the available record does not reasonably support that PTSD, or another boardable BH condition(s) existed at the time of the applicant’s military service, that would be mitigating for the offenses which led to his separation from the Army. In addition, there was insufficient evidence that the applicant had any conditions that failed medical retention standards in accordance with AR 40-501 chapter 3, warranting separation through medical channels. A discharge exam was completed, however, a Mental Status Evaluation Report was not. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. Evidence of record shows the applicant received an upgrade to honorable based on Department of Defense Special Discharge Review Program (DOD-SDRP), 20 May 1977. The Board concurred with the medical advisory opinion finding insufficient evidence that PTSD, or another boardable BH condition(s) existed at the time of the applicant’s military service, that would be mitigating for the offenses which led to his separation from the Army. Therefore, they denied relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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, United States Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Corrections of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Enlisted Personnel Management System), sets forth the policy for administrative separation of enlisted personnel. a. 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. However, a UD was considered appropriate at the time the applicant was discharged. b. Paragraph 3-7a states 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. Paragraph 3-7b states 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 4 April 1977, DOD directed the Services 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 general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, 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, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual. 4. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required. Individuals whose 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 SDRP review. 5. The Board is advised that the VA often requires validation of affirmation of SDRP upgrades by the military service corrections boards in order to authorize the service member VA benefits. 6. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The USC provides, in pertinent part, an award of a VA rating does not establish an error or injustice on the part of the Army. Section 3.12 (Character of discharge) provides the characterization of discharges required to receive VA benefits. A discharge under honorable conditions is binding on the Department of Veterans Affairs as to character of discharge. Benefits are not payable where the former service member was discharged or released under one of the following conditions: a. Paragraph (c) lists conditions under which VA benefits are not payable. One of the conditions listed is a discharge under other than honorable conditions issued as a result of an absence without official leave for a continuous period of at least 180 days. (1) As a Deserter. (2) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term established basic eligibility to receive Department of Veterans Affairs benefits means either a Department of Veterans Affairs determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section b. Paragraph (e) states an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under the authority of 10 USC 1552 is final and conclusive on the VA. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) of this section. c. Paragraph (g) states an honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. 1553, sets aside a bar to benefits imposed under paragraph (d), but not paragraph (c), of this section provided that: (1) The discharge is upgraded as a result of an individual case review; (2) The discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval or air service under conditions other than honorable; and (3) Such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge. d. Paragraph (h) states unless a discharge review board established under 10 U.S.C. 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section: (1) The President's directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or (2) The Department of Defense's special discharge review program effective April 5, 1977; or (3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. 7. 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. 8. 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. 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 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. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009257 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1