IN THE CASE OF: BOARD DATE: 11 August 2021 DOCKET NUMBER: AR20210005216 APPLICANT REQUESTS: Through counsel, reconsideration of his previous request to upgrade the applicant's under other than honorable conditions (UOTHC) discharge. Additionally, as new issues, counsel requests: a. Correction of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 10 December 1971, as follows: * Amend Block 11c (Reason and Authority), from "CHAP 10 AR 635-200 SPN 246 FOR THE GOOD OF THE SERVICE" to "Secretarial Authority" or "Secretarial Plenary Authority," or something similar that does not connote misconduct * Amend Block 13a (Character of Service), from "Under Conditions Other Than Honorable" (UOTHC) to "Honorable," or in the alternative, "General (Under Honorable Conditions)" * Amend Block 13b (Type of Certificate Issued), from "DD FORM 258A" to "DD Form 256A," or in the alternative, "DD Form 257A" * Amend Block 15 (Reenlistment Code), from "RE-3B" to "RE-1," or in the alternative, "RE-2" b. Correction of the applicant's DA Form 20 (Enlisted Qualification Record), by amending Block 7 (Race), from “NEG” (connoting "Negro") to "Black" or "African American." c. Correction of the applicant's DD 4 Form (Enlistment Contract – Armed Forces of the United States), dated 8 November 1969, by amending Block 46 (Race), from "NEG" (connoting "Negro") to "Black" or "African American." d. Counsel further requests that in accordance with the Freedom of Information Act (FOIA) and the Privacy Act, prior to initiating the decision process, he be furnished with copies of all regulations, case summaries, staff briefs, memoranda, advisory opinions, investigation reports, and/or any other documents to be considered in the applicant's discharge review, so as to allow him the opportunity to submit a rebuttal to such materials within a reasonable period of time prior to the decision process. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552), dated 15 August 2020; with counsel’s letter, dated 13 October 2020; a petition cover sheet; and a 38-page petition * Enclosure Lists including the following: * Enclosure 1 – applicant’s affidavit * Enclosure 2 – applicant's prior service record * Enclosure 3 – excerpt of civilian medical records * Enclosure 4 – Department of Veterans Affairs (VA) Rating Decision letters, dated 26 July 2018 and 16 November 2018 * Enclosure 5 – Kurta Memorandum, dated 25 August 2017 * Enclosure 6 – Wilkie Memorandum, dated 25 July 2018 * Enclosure 7 – Biomed Central Psychiatry Post-Traumatic Stress Disorder (PTSD) article, dated 2018 * Enclosure 8 – Canadian Journal of Psychiatry PTSD article, dated 2014 * Enclosure 9 – Military Medicine PTSD article, Volume 185, Issue 1-2, dated 2020 * Enclosure 10 – Military Medicine PTSD article, Volume 183, Issue 5-6, dated 2018 * Enclosure 11 – Vietnam Generation, Volume 1, Number 2, Article 4, dated 1989 * Enclosure 12 – Bigthink.com article, dated 14 November 2018 * Enclosure 13 – Project 100,000 New Standards Program, visited on 3 September 2019 * Enclosure 14 – MHQ Magazine, Spring 2017 article, visited 11 August 2020 * Enclosure 15 – Goodell Papers, dated 1 September 1975 * Enclosure 16 – Executive Order Number 11967 (Relating to Violations of the Selective Service Act), dated 21 January 1977 * Enclosure 17 – Elmer B. Staats (Comptroller General of the U.S.) Report to Congress, dated 15 January 1980 * Enclosure 18 – Excerpt of Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) Diagnostic Criteria for PTSD * Enclosure 19 – Department of Defense (DoD) Task Force on the Administration of Military Justice in the Armed Forces * Enclosure 20 – My Lai Incident Report of Investigation ? FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170003440 on 8 July 2019. 2. As a new argument, counsel states, in effect: a. The applicant requests his discharge be reviewed, to remedy the injustice by correcting his record as requested. When considering the nature of his service and circumstances surrounding his induction and discharge, a UOTHC discharge and misconduct based separation is unjust. The applicant’s request for relief is in part for matters related to PTSD, and liberal consideration must be given based on the directives of the Hagel, Kurta, and Wilkie Memoranda, and that mitigating factors for his misconduct should be considered. b. The VA determined the applicant suffers from severe PTSD as a result of his service in Vietnam. The misconduct he was separated for occurred after his deployment to Vietnam, which the VA determined was the cause of his PTSD. Therefore, his PTSD existed during his service and mitigates the severity of his misconduct. Avoidance is one of the symptoms of PTSD. The applicant is not claiming a valid legal defense for his misconduct but that his PTSD was a mitigating factor that merits liberal consideration. The applicant’s service connected PTSD led to medical complications and his current diagnosis related to service-connected heart disease and Diabetes Mellitus (Type II); which has led to the loss of the lower part of his left leg and toes on his right foot. c. The applicant was susceptible to several contributing factors of PTSD before and during his service. He experienced a traumatic and unstable childhood, such as unstable relationships, an abusive step father, substantial prejudice, discrimination, and systemic racism. d. The applicant enlisted as part of the program titled Project 100,000. This program altered some of the mental and fitness requirements to allow the accession of individuals who would not have otherwise been permitted to join. Nearly all of the reasons that prevented Project 100,000 Soldiers from enlisting prior to the implementation of the program were contributing factors to the susceptibility of PTSD, including lower education levels and the subsequent social isolation and ridicule that come with that stigma. The Armed Forces Qualification Test (AFQT), a precursor to the Armed Services Vocational Aptitude Battery (ASVAB), determined one’s qualification for enlistment. The test separated applicants and draftees into five categories based on their overall score. Under Project 100,000, Category IV men, previously not eligible, were made eligible. e. The New Standards Men (NSM) were comprised of approximately 40 percent (%) African-American men, whereas at the time only 8% of the military was African- American. The majority of NSM came from economically unstable homes with non- traditional family structures, with low-income backgrounds and single parent families. Most were high school dropouts and nearly half of them read below a sixth-grade level or had an IQ below 85. As mentioned above, the applicant fit many of these same demographics. Though his IQ level is unavailable; he did not complete high school and his low AFQT score of 17 should demonstrate his low level of formal education and increased susceptibility to PTSD, based on a lower IQ score. These NSM were three times more likely to be killed in action and more likely to be subject to disciplinary actions while in Vietnam. The lack of knowledge of his propensity for PTSD and the subsequent lack of support for him caused a condition that resulted in avoidance behavior, culminating in his periods of absence without leave (AWOL). f. The applicant enlisted in February 1968, under military occupational specialty (MOS) 11B (Light Weapons Infantryman). He completed airborne training and began his service in Vietnam on or about 3 December 1968. He was assigned to Headquarters and Headquarters Company (HHC), 23rd Infantry (Americal) Division at Chu Lai. The Americal Division was responsible for the My Lai incident that occurred on 16 March 1968. Notably, the applicant was not in the Americal Division at the time of the My Lai incident; he arrived over eight months later. However, throughout his entire time in Vietnam, he served in HHC, Americal Division as a billeting Soldier at the Bachelor Officers’ Quarters (BOQ) at Chu Lai, where he learned of the atrocities and active cover-up by listening to stories from older non-commissioned officers (NCOs). He specifically heard a captain trying to pin the entire incident on a lieutenant. Mistrust of command can be a prevalent theme for service members seeking mental health treatment outside the military, for mental health conditions including PTSD. This caused him to mistrust leadership and left him with no reliable formal support structure, which resulted in his self-reliance instead of trusting his chain of command to assist him with difficulties, which further contributed to his susceptibility to PTSD. g. Counsel provides a summary of the Diagnostic and Statistical Manual of Mental Disorders (DSM–5) criteria used to diagnose PTSD, to further understand the applicant’s behavior following his service in Vietnam. h. The applicant reenlisted for a six-year term while in Vietnam. After returning to the States, he was married on 12 December 1969, shortly before reporting to Fort Carson, CO. He wife was soon pregnant with twins. It was at Fort Carson that his struggles with PTSD started, with feelings of mistrust for leadership and their reputation for discrimination. Starting in the summer of 1970, he had several short periods of AWOL. He was granted leave in the summer of 1970, when he and his wife went back home to GA; she started having complications with her pregnancy. She was more comfortable at home and did not want to leave GA. When his requested leave extension was denied, he made the poor decision not to return when he was due back. His wife endured a complicated Caesarean (C) section; their twins were born prematurely in September 1970. They later learned one of their daughters had sickle cell anemia, which claimed her life at age 26. i. The applicant did not seek help from leadership because of the mistrust he learned in Vietnam. Had he not been suffering from PTSD, and had he simply been a bad Soldier, he would not have served successfully for over two years, including a tour in Vietnam. He would not have been awarded an Army Commendation Medal (ARCOM); nor would he have been allowed to reenlist for six years. If he were immature or simply a "bad egg," his troubles would have started earlier. j. He was later reassigned to Fort Benning, GA, which was relatively close to his home. Despite this closer proximity to home, it did not cure his distrust of military leaders; the racism in the military justice system and throughout, GA; and the stress caused by his sick twins. He compares the applicant’s sentence to that of the lieutenant, who was convicted of the atrocities in My Lai on the same day the applicant was convicted of going AWOL. Although the applicant was convicted of two separate court-martial charges, this should not be compared to the same standards as those of today, as a court-martial then by today’s standards would be equivalent to administrative or non-judicial punishment. The Board should understand the applicant’s perspective of why he went AWOL, and consider the disparate impact that the military justice system inflicted upon minority service members at that time. k. The applicant was separated in 1971 with a UOTHC discharge, when black service members received a lower portion of honorable discharges and a higher portion of general and undesirable discharges than whites of similar aptitude and education. AWOL can be influenced by avoidance of hyper-arousal symptoms of PTSD. Service members with PTSD may have a strong aversion to reminders of a traumatic event, which may result in avoidance behavior that violates orders. The applicant’s misconduct was for nonviolent minor military infractions and he was never accused of hurting another person or having the intent to harm his unit. He has suffered additional emotional distress from the impact of his UOTHC discharge. While draft dodgers were forgiven and allowed to move on with their lives without stigma, he went to Vietnam and served proudly. Nevertheless, due to his PTSD and the stigma surrounding his UOTHC discharge, he has struggled to find employment. This led him to make some terrible choices in the years following his service; and a lengthy period of time in State and Federal penitentiaries, although his crimes never caused any physical harm to anyone. 3. The applicant submits an 11-page affidavit, wherein he stating the following: a. He grew up in rural GA, where he experienced segregation, discrimination, and racial tension. He always received good grades and was active in sports, until he dropped out of high school after the 10th grade to help on the farm. He thought joining the Army would make things different and he would finally be treated as a man, rather than treated differently because he was black. b. He joined the military in February 1968 under the 100,000 Project and was sent to Chu Lai, Vietnam with the Americal Division, where he worked at the BOQ and saw combat a few times. He enjoyed his time in Vietnam working at the billeting office, this also placed him in close proximity to those trying to cover up the My Lai incident. Though he dropped out of high school, he later earned his GED while in the Army. Near the end of his deployment, he received an ARCOM and decided to reenlist for six years. He got married when he returned home. c. He liked being a Soldier while in Vietnam. He was good at it but when he returned, he struggled with depression, anxiety, and insomnia, and he had trust issues with leadership. He could not seem to do anything right at home or work and he struggled with motivation. He relates much of his life story as counsel did above; detailing how PTSD was the reason he went AWOL. He and counsel assert he was bitter seeing the lieutenant, who was convicted of 22 counts of murder, being placed under house arrest while he served 10 days in the stockade for going AWOL. He further goes on to explain his life struggles after discharge. 4. The applicant enlisted in the Regular Army on 9 February 1968. Following the completion of his initial entry training, he was reassigned on 1 December 1968 to the Republic of Vietnam, where he served with Headquarters and Headquarters Company, 23rd Infantry (Americal) Division. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 13 December 1968, for absenting himself from his appointed place of duty, from on or about 12 December 1968 through 13 December 1968, in the Republic of Vietnam * on 29 January 1969, for being found asleep while posted as a bunker sentinel, on or about 28 January 1969, in the Republic of Vietnam 6. The applicant signed his DA Form 20 on or about 1 November 1968. Block 7 contains the entry "NEG." 7. The applicant was honorably discharged on 7 November 1969, for the purpose of immediate enlistment in the Regular Army. He was issued a DD Form 214 for this period that confirms his service was characterized as honorable. 8. The applicant reenlisted in the Regular Army on 8 November 1969. Block 46 of the applicant's DD Form 4 contains the entry "NEG." 9. The applicant was returned to the continental U.S. (CONUS) on or about 28 November 1969. Upon his return to CONUS, he was reassigned to Fort Carson, CO. 10. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: * on 21 November 1969, for failing to go at the time prescribed, to his appointed place of duty, on or about 15 November 1970, in the Republic of Vietnam * on 15 April 1970, for absenting himself from his appointed place of duty, on or about 14 April 1970; for leaving his post without being properly relieved, on or about through 19 April 1970; and for absenting himself from his unit, from on or about 1300 hours until on or about 1630 hours 17 April 1970, at Fort Carson, CO * on 30 April 1970, for four specifications of absenting himself from his appointed place of duty, on or about 26 April 1970, on or about 28 April 1970, and on or about 29 April 1970, at 0530 hours and 1700 hours, at Fort Carson, CO 11. Before a special court-martial on or about 19 October 1970, at Fort Carson, CO, the applicant was found guilty of two specifications of absenting himself from his unit, from on or about 20 June 1970 through on or about 3 July 1970, and from on or about 20 July 1970 through on or about 30 September 1970. His sentence included his reduction in grade to E-1 and 90 days of hard labor without confinement. The sentence was approved and ordered executed on 22 November 1970. 12. The applicant accepted NJP on 9 November 1970, under the provisions of Article 15 of the UCMJ, for two specifications of being derelict in his duties, by negligently failing to perform his extra duty, on or about 3 November 1970 and on or about 4 November 1970, at Fort Carson, CO. 13. The applicant was reported by his unit as AWOL on or about 5 January 1971. He was dropped from the unit rolls on 4 February 1971 and was returned to military control on or about 11 March 1971 at Fort Benning, GA. He was assigned to the Special Processing Detachment under Headquarters Command. 14. The applicant accepted NJP on 24 March 1971, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, from on or about 2400 hours 20 March 1971 through on or about 2330 hours 21 March 1971, at Fort Benning, GA. 15. Before a special court-martial on or about 29 March 1971, at Fort Benning, GA, the applicant was convicted of absenting himself from his unit, from on or about 5 January 1971 through on or about 10 March 1971. His sentence included his reduction in grade to E-1 and 31 days of confinement at hard labor. The sentence was approved and ordered duly executed on 8 April 1971, except the portion extending to confinement at hard labor, which was suspended for two months. 16. The applicant accepted NJP on 11 June 1971, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit, from on or about 19 May 1971 through on or about 7 June 1971, at Fort Benning, GA. His punishment included 15 days of confinement; however, on 22 June 1971, all days of confinement in excess on nine were suspended until 22 September 1971. 17. Court-martial charges were preferred against the applicant on 24 November 1971, for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with being AWOL, from on or about 2 September 1971 through on or about 16 November 1971. 18. The applicant consulted with legal counsel on 24 November 1971 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. 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. b. He was advised he could submit any statements he desired in his own behalf. He elected not to submit a statement in his own behalf. 19. The applicant’s commander recommended approval of his discharge request on 26 November 1971, under the provisions of Army Regulation 635-200, Chapter 10, and recommended he receive a DD Form 258A (Undesirable Discharge Certificate). 20. The applicant’s intermediate commander recommended approval of his discharge request on 2 December 1971, under the provisions of Army Regulation 635-200, Chapter 10, and recommended he receive an Undesirable Discharge Certificate. 21. The separation authority approved the applicant's request for discharge on 7 December 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate. 22. The applicant was discharged on 10 December 1971, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows the following entries: * Block 11c (Separation Authority) – "CHAP 10 – AR 635-200, SPN 246 FOR THE GOOD OF THE SERVICE" * Block 13a (Character of Service) – "UNDER OTHER THAN HONORABLE CONDITIONS" * Block 13b (Type of Certificate Issued) – "DD Form 258A" * Block 15 (Reenlistment Code) – "RE-3B" 23. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 24. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 8 July 2019. 25. Counsel provides over 1,200 pages of documents as previously summarized. 26. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. 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, including PTSD. The Veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 27. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. A review of his service record indicates he completed a separation physical. A review of JLV indicates the applicant has received medical treatment since September 2016. He has been awarded service connected for treatment purposes only for PTSD along with multiple medical conditions. Due to his discharge type, he was not given a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time his discharge. Under liberal guidance, PTSD is considered a mitigating factor for the misconduct that led to his discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical official's assessment finding insufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, based upon guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation was not in error or unjust. His service did not rise to the level required for an honorable or a general characterization. For that reason, the Board voted to deny his request for an upgrade. 2. The Board noted that the applicant applicant’s record clearly shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. Because he requested a voluntary discharge instead of facing the court-martial, his narrative reason for separation is listed as "in lieu of trial by court-martial." Because there is no error in this narrative reason, Board members voted to deny this portion of his request. 3. The applicant’s separation and RE codes were assigned based on the fact that he was separated under the provisions of chapter 10, AR 635-200, in lieu of trial by court- martial. He was assigned a separation code of "KFS" which is the appropriate code associated with a chapter 10. The RE-code associated with this type of discharge was RE-3 at the time (it is RE-4 today). The Army does not use RE Code 2. Because the Separation Code and RE Code are both correctly listed on his DD Form 214, the Board voted to deny this portion of his request. 4. As for correcting the race on the DD Form 4 and the DA Form 20, the Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. Additionally, the Board generally limits corrective action to documents that can be individually reviewed after a Soldier's separation. Since the DA Form 4 and the DA Form 20 are not normally accessible by individuals other than the Soldier, there is no basis for the Board to correct it. For those two reasons, the Board voted to also deny this portion of his request. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Regrading reconsideration of the character of service, 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 AR20170003440 on 8 July 2019. 2. Regarding the new issues (correction of narrative reason, separation code, RE Code, and his DD Form 4/DA Form 20), tThe 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. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and ARNG. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a nonwaivable 2. Army Regulation 601-280 (Personnel Procurement – Regular Army Reenlistment Program), in effect at the time, prescribes basic eligibility criteria for persons currently in the Active Army for immediate reenlistment. Table 1-3, Reenlistment Eligibility Codes for Reenlistment in the Regular Army, includes a list of RE codes: * RE-1 applies to individuals fully qualified for immediate reenlistment * RE-3 applies to individuals not eligible for immediate reenlistment unless waiver consideration is permissible and is granted * RE-3B also applies to individuals not eligible for immediate reenlistment unless waiver consideration is permissible and is granted by reason of having had lost time 3. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 20 and orders to verify the entries on the DD Form 214. 4. Army Regulation 635-5-1 (Separation Program Numbers and Authorities), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214. This regulation identified the SPN of "246" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had 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 in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 6. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations. Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 8. The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 9. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005216 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1