IN THE CASE OF: BOARD DATE: 7 October 2021 DOCKET NUMBER: AR20210005582 APPLICANT REQUESTS: An upgrade of his character of service from under other than honorable conditions to general, under honorable conditions, or to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Letter, from the Army Board for Correction of Military Records (ABCMR) requesting medical documents to support his claim 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 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 provides a: a. Personal statement, in which he requests additional time to get the information he needs to support his contentions. He states the Department of Veterans Affairs (VA) Hospital in Shreveport, LA, diagnosed him to suffer from Agent Orange and post- traumatic stress disorder (PTSD), but he has been unable to obtain records to support his request because little was known about the conditions when he served. He has tried to deal with this emotional and medical disorder on his own, because he has been unable to get the care he needs from the VA. b. Letter from the Army Review Boards Agency (ARBA), dated 16 November 2020, advising him that his case was placed on hold until 18 December 2020 to allow him time to provide medical and other documents from the VA to support his PTSD condition. 3. On 20 March 1970, the applicant enlisted in the Regular Army for 3 years. He held military occupational specialty (MOS) 67N (U-H1 Helicopter Repairman). He served in Vietnam from 1 October 1970 through 7 October 1971. 4. He accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), on: a. 25 September 1970, for being absent without leave (AWOL) from the Overseas Replacement Station, Personnel Center, Oakland Army Base, Oakland, CA, from 15 to 23 September 1970. His punishment consisted of a forfeiture of $26 pay for 1 month. b. 25 January 1971, for operating a 2 ˝ ton truck in a reckless manner by drag racing and for operating a 2 ˝ ton truck without a valid “Form 46,” both occurred on 24 January 1971. His punishment consisted of a forfeiture of $25 pay for 1 month and 14 days of extra duty and restriction. c. 23 February 1971, for wrongfully having in his possession 8 ounces more or less of marijuana, on 16 February 1971. His punishment consisted of reduction from pay grade E-3 to E-2, a forfeiture of $50 pay for 1 month, and 45 days of restriction. d. 16 April 1971, for disobeying a lawful order by failing to obey the curfew from 2300 hours to 600 hours. His punishment consisted of 14 days of extra duty and 14 days of restriction. e. 22 September 1971, for failing to go to his appointed place of duty at the time prescribed, guard duty, from 21 to 22 September 1971. His punishment consisted of a forfeiture of $25 pay for 1 month. 5. Special Court-Martial Order Number 12 shows charges were preferred against the applicant under the UCMJ for being AWOL from 23 November to 12 December 1971. He pled guilty and on 11 January 1972, the court found him guilty, convicted him, and sentenced him to serve 80 days in confinement. On 19 January 1972, only so such of the sentence as provided for a forfeiture of $110 pay for 1 month and confinement at hard labor for 90 days was approved and ordered duly executed. 6. The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case. However, his record contains a: a. Report of Medical Examination, dated 28 June 1972, showing as part of the discharge process, he was found qualified for separation. b. Mental Status Evaluation, dated 28 June 1972, showing he was cleared for administrative action deemed appropriate by his commander. c. DD Form 214 that was prepared at the time of separation that shows on 21 July 1972, he was discharged in pay grade E-1. His awards are listed as the Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal, and Marksman Marksmanship Qualification Badge (Rifle). The DD Form 214 shows in: * Reason and Authority, Chapter 10, AR635-200, SPN 246, For the Good of the Service * Character of Service, Under Other Than Honorable Conditions * Net Service This Period, 1 year, 10 months, and 8 days * Foreign and/or Sea Service, USARPAC, 1 year, 0 Months, and 7 days * Time Lost, 15 September 1970 – 22 September 1970, 21 September 1971, 23 November 1971 – 12 December 1971, and 17 January 1972 – 11 June 1972 * Remarks, “Vietnam – 1 October 1970 through 7 October 1971, Indochina – Yes” 7. The applicant's record is void of the specific facts and circumstances surrounding his discharge; 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. 8. Discharges under the provisions of AR 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. 9. In reaching its determination, the Board can consider the applicant’s petition, his Vietnam service, contention of PTSD and Agent Orange, and his service record in accordance with the published equity, injustice, or clemency guidance. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his under other than honorable conditions discharge was due to PTSD he developed during his time in service. b. The Army Review Boards Agency (ARBA) psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the application and supporting documentation and his military records. The VA electronic medical record, Joint Legacy Viewer (JLV), was also reviewed. No hard copy military medical records or civilian medical documentation was provided for review. c. The VA electronic medical record, JLV, did not indicate any service connected disabilities. There was no data available for any medical or behavioral health notes, as well as no data on the problem list. d. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the ARBA psychologist that the applicant has a partially mitigating behavioral health condition, trauma-related symptoms. This applies in particular to his AWOL episodes during and after Vietnam, disrespectful/disobedient behavior and substance abuse. As there is an association between trauma-related symptoms and avoidant behavior, there is a nexus between applicant’s symptoms and his absences/neglectful performance from his unit and required duty functions during and after his deployment to Vietnam. As there is also an association between trauma-related symptoms and use of illicit drugs to self-medicate symptoms, there is a nexus between his symptoms and the pattern of substance abusing behavior he demonstrated. In addition, as there is an association between trauma-related symptoms and resistant, negative attitudes toward authority figures, there is a nexus between his symptoms and the disrespectful behavior he demonstrated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop trauma-related symptoms in a combat environment. However, the purposeful act of racing a government vehicle in a restricted area (i.e., an airfield) is not part of the natural history or sequelae of trauma related symptoms and, as such, is not mitigated under Liberal Consideration. The first AWOL period just prior to Vietnam is also not mitigated, as it precedes his traumatic events in a combat zone. Even so, a discharge upgrade is recommended. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, and the reason for his separation. 2. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board concurred with the conclusion of the medical advising official regarding much of his misconduct being mitigated by trauma-related symptoms. Based on a preponderance of evidence, the Board determined the applicant's character of service should be changed to honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 his DD Form 214 to show his character of service as honorable. 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, 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. AR 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 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. 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. 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. 5 On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. 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) AR20210005582 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1