IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210007377 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20100024055 on 5 April 2011. In effect, he requests the affirmation of his previously upgraded discharge under the Department of Defense (DoD) Special Discharge Review Program (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits, or, in the alternative, that his under honorable conditions (general) discharge be upgraded to an honorable discharge. Lastly, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 29 July 2020, with self-authored statement 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 AR20100024055 on 5 April 2011. 2. As a new argument, the applicant states: a. He got orders to Vietnam and went home on leave. Going home to all the problems in his family is what started his mental problems and led to him going absent without leave (AWOL) to stay home to help his family. He later turned himself in and volunteered to go to Vietnam. He believes this was the beginning of his post-traumatic stress disorder (PTSD). b. He was given the duty to bag the bodies of those killed in action. He will never forget seeing the body of his best friend over there. Things were bad between him and his sergeant, he was threatened almost daily with rape. He can’t remember everything just the horrors. PTSD was not mentioned when he was sent home but he thinks they knew what it was. He went missing for months and does not remember anything, only that he was discharged. c. His life was hell for many years and he became an alcoholic. One of his arrests led to mandatory rehabilitation. An old friend brought him to a Veterans Center that helped him address his issues. Since then, with the help of therapy and medication, he has a life. PTSD had everything to do with his discharge, his year in Vietnam was the most honorable time in his life. He asks that he be granted a fully honorable discharge. d. He is suffering from liver cancer and has been through treatment but it doesn’t seem to have helped. With an honorable discharge there are tax incentives and programs that would help him and his wife. He established an employee assistance program at his place of employment to help workers with alcohol and drug problems. He coached youth baseball and basketball teams in his neighborhood. 3. The applicant enlisted in the Regular Army on 1 May 1967. 4. Before a special court-martial on or about 2 August 1968, at Fort Dix, New Jersey, the applicant was found guilty of being AWOL, from on or about 17 May 1968 through on or about 15 July 1968. 5. The applicant served in the Republic of Vietnam from on or about 18 August 1968 through on or about 19 August 1969. 6. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was reported as AWOL from on or about 6 October 1969 through on or about 6 April 1970. He entered confinement on 7 April 1970. 7. The applicant's commander notified the applicant on 30 April 1970 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6a, by reason of unfitness for military service. The applicant acknowledged receipt of the separation notification on the same date. 8. The available record is void of the applicant’s consultation with counsel or his election or declination of the options available to him. 9. The applicant's commander formally recommended the applicant's discharge on 8 May 1970, under the provisions of Army Regulation 635-212, paragraph 6a, by reason of unfitness. As the specific reasons, his commander stated the applicant had no motivation for continued service and would not respond to rehabilitation. 10. The separation authority approved the recommended discharge on 11 May 1970, under the provisions of Army Regulation 635-212, and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate). 11. The applicant was discharged on 21 May 1970, under the provisions of Army Regulation 635-212, by reason of unfitness. His service was characterized as under other than honorable conditions (UOTHC) and he was issued an Undesirable Discharge Certificate. 12. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his request on 10 October 1972, determined he was properly and equitably discharged, and denied his request for relief. 13. The DoD directed the Services, on 4 April 1977, 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 under honorable conditions or honorable 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 that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 14. In accordance with the provisions of the DoD SDRP, the applicant’s UOTHC discharge was upgraded on 17 May 1977 to an under honorable conditions (general) discharge. His previous DD Form 214 was voided and a new DD Form 214 was created to reflect this change. 15. In accordance with Public Law 95-126, the Army Discharge Review Board (ADRB) re-reviewed the FSM’s discharge and determined his characterization was warranted in accordance with the DoD SDRP. He was advised that he would not be able to use his upgraded discharge to qualify for Department of Veterans Affairs (VA) benefits. Accordingly, a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) was issued that shows his characterization of service was warranted under the provisions of the DoD SDRP. 16. The Board has been advised in similar cases that the VA often requires validation or affirmation of DoD SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits. 17. The ABCMR denied the applicant’s request for affirmation on 5 April 2011, under Docket Number AR20100024055. 18. 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. 19. 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 and met retention standards IAW AR 40- 501. A review of JLV indicates the applicant has received treatment in the VA system since September 2007. The applicant has a service connected disability rating on 100% for PTSD effective 31 Aug 2007. 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. The applicant met retention standards at the time of his discharge. Under liberal guidance, PTSD is a mitigating factor for AWOL. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for 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 and whether to apply clemency. Based upon a preponderance of evidence, the medical reviewer’s recommendation, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100024055 on 5 April 2011. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 21 May 1970 showing the character of service as under honorable conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. 3. Army Regulation 635-212, then in effect, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued. 4. The Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR), 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. 5. The Under Secretary of Defense for 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. 6. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service DRBs and 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) AR20210007377 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007377 1 ABCMR Record of Proceedings (cont) AR20210007377 1