ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 January 2022 DOCKET NUMBER: AR20210009907 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 2 Department of Veterans Affairs Letter * Army Review Boards Agency Letter 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 Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, his discharge status be amended to honorable due to his Post Traumatic Stress Disorder (PTSD). He receives service connected disability compensation at 100%. 3. The applicant provides: a. A VA Rating Decision letter, dated 9 June 2020, shows he has a service connected disability for, PTSD 70% and Hypertension 40%. b. A VA letter, dated 23 June 2020, shows that effective 29 March 2020, he receives service connected disability compensation at 100%. 4. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 May 1971 for 3 years. He completed training and held military occupational specialty 76P (Stock Control and Account Specialist). b. Special Orders Number 50, dated 8 March 1972, Headquarters 82nd Airborne Division, Fort Bragg, NC, honorably discharged him, effective 9 April 1972. c. He reenlisted in the Regular Army on 10 April 1972. He then served in Vietnam from 18 May 1972 through 5 March 1973. d. On 20 November 1972, he accepted non judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) at Da Nang, Vietnam, for without authority, failing to go at the time prescribed to his appointed place of duty. His punishment consisted of forfeiture of $25.00 pay for two months. e. On 18 January 1973, he accepted NJP under Article 15, UCMJ at Da Nang, for being outside a military installation in civilian clothing and he was apprehended by the military police, in an off limits area. His punishment consisted of forfeiture of $70.00, reduction to private first class/PFC/E-3 (suspended). f. On 3 July 1973, he accepted NJP under Article 15, UCMJ at Fort Campbell, KY for failing to properly secure the M-16 rifle in his possession. His punishment consisted of detention of $87.00 for 14 days, reduction to private/E-2 (suspended) and extra duty. g. On 2 March 1974, he accepted NJP under Article 15, UCMJ at Fort Campbell, KY for without authority absenting himself from his unit from 18 to 21 January 1974 and for failing to go at the time prescribed to his appointed place of duty on three occasions. His punishment consisted of forfeiture of $100.00 for per month for two months, extra duty and reduction to PFC/E-3 (suspended). h. On 9 March 1974, the Certificate of Unsuitability for Reenlistment shows his immediate commander considered him a substandard Soldier who should be barred from reenlistment in the service. His conduct was unsatisfactory and his efficiency was satisfactory. The applicant read and understood the allegation by his commander concerning his unsuitability and elected not to make a statement. On 29 March 1974, the recommendation for a Bar to Reenlistment was approved by the commanding officer. i. On 22 October 1974, he was reported in an AWOL status and on 21 November 1974, he was dropped from the rolls as a deserter. He was apprehended by Navy Shore Patrol, Los Angeles, CA on 3 November 1975 and returned to military control. He was in the U. S. Army Personnel Control Facility, Fort Ord, CA. j. On 6 November 1975, his immediate commander advised him that he was being considered for elimination for an AWOL of one year or more under the provisions of Chapter 15, Army Regulation (AR) 635-200 (Personnel Separations) and advised him of his rights. The applicant acknowledged receipt. He submitted a statement. k. On 6 November 1975, the applicant consulted with legal counsel. He was advised of the basis for the contemplated action to accomplish his separation for AWOL in excess of one year under AR 635-200, and of the procedures and rights that were available to him. l. Following consultation with legal counsel, he indicated: * he waived consideration of his case by a board of officers and personal appearance before a board of officers * he waived representation * he understood that he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him * he understood as a result of issuance of an undesirable discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both federal and state laws and that he might expect substantial prejudice in civilian life * He made the choices feely and without threats or coercion or without promises of any kind * he elected to submit a statement in his own behalf m. He states, he served in Vietnam from April 1972 to September 1973. His original job was stock control specialist with 142nd Transportation, and towards the end of the war his company suffered severe loses and casualties as for as crew chiefs and members. He had been up before on joy rides with an officer and warrant officer, and liked the experience very much. He was asked by the same officers if he would like to become a crew member. He agreed. His job was mainly M-60 machine gunner and partly mechanic. He had been assigned to his new unit for 2 or 3 months before receiving his first letter of commendation approximately 2 months later he was awarded a promotion to sergeant/E-5 and crew chief of another chopper. He was awarded the Bronze Star Medal for meritorious service; the Army commendation medal and the Army Good Conduct Medal and another letter of commendation for filling in for the noncommissioned officer (NCOIC) of armament when he took sick and was medevacked to Saigon Hospital. He reenlisted while in Vietnam and really enjoyed his work. Once he returned to the states and Fort Campbell, he tried desperately to get his MOS changed to that of a helicopter crew chief, and get back to work where he really felt something. They never came in the course of trying to be re-slotted his superior NCOs subjected him and the men in his squad to numerous details that in his eyes weren’t justified, and undo harassment, which brought on an article 15 reduction in rank and finally on his part AWOL. He served his country in time of need and would do so again. n. On 10 November 1975, he underwent a mental status evaluation. His DA Form 3822-R (Report of Mental Status Evaluation), shows he did not have significant mental illness: * he was mentally responsible * able to distinguish right from wrong * able to adhere to the right * had the mental capacity to understand and participate in board proceedings * met retention standards prescribed in Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) o. On 26 November 1975, his immediate commander recommended he be separated from the Army under the provisions of Chapter 15, AR 635-200, based upon his unauthorized absence from his assigned Army unit from on or about 22 October 1974 to on or about 3 November 1975, as substantiated by the applicant’s statement. Trial by court martial for the above offense is deemed inadvisable in view of the seriousness of the applicant’s offense and his negative attitude toward the Army. Retention was neither practical nor desirable. The applicant served in Vietnam during the period 13 July 1972 to 12 March 1973 and received the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. p. On 1 December 1975, his commander recommended approval of the discharge. He opined the recommendation was deemed appropriate in view of the applicant’s negative attitude toward the Army and the gravity of his offense. Rehabilitation in the Army setting was highly unlikely. Accordingly, expeditious separation was deemed appropriate. q. On 8 December 1975, the separation authority approved the applicant's elimination under the provisions of AR 635-200, Chapter 15, with a General Discharge Certificate, Special Program Designator (SPD) JKD (Misconduct-AWOL). r. Special Orders Number 087, dated 16 December 1975, Headquarters, 7th Infantry Division, Fort Ord, assigned him to the separation transfer point for separation processing and Orders 145-54, dated 25 May 1978, discharged him effective 18 December 1975. s. He was accordingly discharged on 18 December 1975. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in the rank of PFC/E-3 in accordance with Chapter 15 (Misconduct-AWOL, Desertion and Absence Without Leave) of AR 635-200, with an under honorable conditions (general) characterization of service. He completed 2 years, 7 months and 19 days of active service and he had lost time from 11 April 1973 through 15 April 1973, 18 January 1974 through 20 January 1974, and 22 October 1974 through 2 November 1975. It also shows he was awarded or authorized: Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal, and Republic of Vietnam Campaign Medal. t. There is no evidence the applicant petitioned the Army Discharge Review Board for review of his discharge. u. On 18 June 2021, by letter, a staff member of the Army Review Boards Agency requested the applicant provide a copy of the medical documents that support his issue of PTSD. The applicant responded on 15 July 2021 with the above Department of Veterans Affairs Benefits Letter. 4. By regulation (AR 635-200), absentees or deserters who have returned to military control may be discharged without trial when the unauthorized absence was continuous for 1 year or longer. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Honorable Conditions (General) discharge was due to PTSD he developed during his time in service. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was also reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 13 May 1971. He was deployed overseas to Vietnam from 13 Jul 1972 - 12 Mar 1973. During his service, his awards included the Vietnam Service Medal and the Vietnam Campaign Medal. His job assignments were Stock Control and Accounting Specialist, as well as Machine Gunner in the Republic of Vietnam. He received at least four Article 15’s for missing mess hall headcount (18 Nov 1972), being picked up by MP’s for being in an “off-limits area” in Danang, Vietnam (25 Dec 1972), failure to “properly secure the M-16 A-1” (27 Jun 1973), going AWOL from 18-21 Jan 1974, and missing “morning formation” (24 Jan 1974). A Bar to Reenlistment letter, dated 09 Mar 1974, was initiated due to four letters of indebtedness between 09 Aug 1973 and 05 Mar 1974, as well as two AWOL episodes. A Report of Mental Status Evaluation, dated 10 Nov 1975, observed normal behavior and thought content, as well as level mood and meeting retention standards. An Elimination Action UP, Chapter 15, AR 635-200, dated 26 Nov 1975, was initiated due to an extensive period of being AWOL from 22 Oct 1974 - 03 Nov 1975. He received an Under Honorable Conditions (General) discharge on 18 Dec 1975 with DD-214 Authority and Reason, “Chapter 15, AR 635-200, JKD.” d. The VA electronic medical record, Joint Legacy Viewer (JLV) indicated a 90% service connected disability with Posttraumatic Stress Disorder 70%; Hypertensive Vascular Disease 40%; Degenerative Arthritis of the Spine 20%; Limited Flexion of Knee 10% x2; and Tinnitus 10%. A Mental Health Note, dated 04 Apr 2018 indicated, “63 year old AA Male with a history including IVDU with heroin and crank cocaine, cannabis, alcohol, oxycodone, codeine, and methamphetamines, depression and a history of multiple incarcerations for charges related to substance abuse and assault…suffers from reduced sleep, baseline auditory hallucinations, anxiety, depression and irritability.” He was diagnosed with “Major Depressive Disorder, Recurrent, Moderate; Posttraumatic Stress Disorder, Combat; Substance Induced Mood Disorder; Substance Induced Psychosis; Opioid Use Disorder; Cocaine Use Disorder in Sustained Remission; Methamphetamine Use Disorder in Sustained Remission; Cannabis Use Disorder in Sustained Remission; and Alcohol Use Disorder, Binge Type.” The Problem List included Nightmare Disorder (15 Dec 2021); Puerperal Psychosis (26 Feb 2020); Posttraumatic Stress Disorder, Chronic (26 Feb 2020); Opioid Abuse (in remission), (11 Jan 2018); Unspecified Psychosis Due to a Substance or Known Physiological Condition; Alcohol Dependence with Alcohol-Induced Mood Disorder (19 Jul 2017); Cocaine Abuse with Other Cocaine Induced Disorder (19 Jul 2017); Homelessness (30 Jun 2017); Major Depressive Disorder, Recurrent, Mild (08 Jun 2017); and Posttraumatic Stress Disorder (04 Feb 2005). e. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has a mitigating Behavioral Health condition, Posttraumatic Stress Disorder (PTSD). As there is an association between PTSD and avoidant behavior, there is a nexus between applicant’s diagnosis and his periods of going AWOL along with absences from required duties and lackluster performance. Also as there is an association between PTSD and functional impairment across many domains, there is a nexus between applicant’s PTSD diagnosis and mismanagement of his financial affairs. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during and after his deployment to Vietnam. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD in a combat environment. A discharge upgrade is recommended. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 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, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board agreed with the medical advisor that there is a nexus between applicant’s diagnosis and his periods of going AWOL along with absences from required duties and lackluster performance. Also as there is an association between PTSD and functional impairment across many domains, there is a nexus between applicant’s PTSD diagnosis and mismanagement of his financial affairs. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD in a combat environment. Board members voted to grant relief, only for the character of service. 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 amending his DD Form 214 ending on 18 December 1975 to show an honorable character of service. 1/18/2022 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Absentees or deserters who have returned to military control may be discharged without trial when the unauthorized absence was continuous for 1 year or longer. b. Paragraph 3-7a of the regulation currently in effect provides that 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 of the regulation currently in effect provides that 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which 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. 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 based on 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. 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//