IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210011500 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Transfer or Discharge) 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 Army Board for Correction of Military Records 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 he served in Vietnam and suffered from post-traumatic stress disorder (PTSD) upon returning stateside. He was a young man who was missing in action during his time in country. He was a scared young man who had experienced the horrors of war. He is requesting that his current service record be used for determination. He does not have the means to receive others. He served his country honorably and was a scared kid after Vietnam. His service should be recognized. In addition, PTSD had not been diagnosed then. 3. On 30 October 1967, the applicant was inducted in the Army of the United States. His record shows he served in the Republic of Vietnam from on or about 1 May 1968 to 27 May 1969. 4. His record also contains an Enlisted Qualification Record that shows he was awarded or authorized the: * Sharpshooter Qualification Badge with M-14 Rifle Bar * Parachutist Badge * Expert Qualification Badge with M-16 Rifle Bar * Vietnam Service Medal * Republic of Vietnam Campaign Medal * Overseas Service Bar 5. On 17 March 1969, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being found sleeping on his post at Camp Evans in Vietnam. The applicant did not appeal. 6. On 16 April 1969, he received NJP under the provisions of Article 15 of the UCMJ for improperly performing guard duty at Camp Evans, Republic of Vietnam, by failing to challenge an approaching individual at night. He did not appeal. 7. On 26 April 1969, he was convicted by a special court-martial. The applicant pleaded guilty and was found guilty of being absent with leave (AWOL) from 11 to 16 February 1969, 20 to 23 February 1969, and 27 February to 9 March 1969. His sentence consisted of confinement at hard labor for four (4) months, forfeiture of $73 per month for 4 months, and to be reduced to the grade of private (E-1). 8. On 1 May 1969, only so much of the sentence as provided for reduction to the grade of private (E-1) and forfeiture of $73 per month for 4 months was approved and ordered duly executed. 9. On 18 August 1969, a Letter of Inquiry issued by the Assistant Adjutant, Headquarters, U.S. Army Infantry Center Troop Command, Fort Benning, GA, states, in pertinent part, the applicant was assigned to the Replacement Detachment at Fort Benning, GA, from his unit in Vietnam with an effective date of change of strength accountability (EDCSA) of 23 May 1969. The applicant reported to the Replacement Detachment, but then went AWOL at 0600 hours, 9 July 1969. 10. The applicant’s record contains Extract Copy of Morning Reports and other documents that show: * he was apprehended by civilian authorities on 26 September 1969 * he was returned to military control at Fort Polk, LA, on 1 October 1969 * he went AWOL on 4 October 1969 * he was apprehended by civilian authorities on 7 December 1969 * he was returned to military control at Fort Polk, LA, on 12 December 1969 * 13 December 1969, he went AWOL again * on or about 18 May 1970, he was returned to military control 11. On 3 June 1970, the applicant was medically cleared for administrative separation under the provisions of Army Regulation (AR) 635-212 (Discharge Unfitness and Unsuitability). 12. On 17 June 1970, court-martial charges were preferred against him for being AWOL from on or about 9 July to 26 September 1969 and 13 December 1969 to 18 May 1970. 13. On 23 June 1970, the applicant was advised by his commander that he was being recommended for separation from the Army under the provisions of AR 635-212 for unfitness. The commander informed him of his rights and the applicant acknowledged receipt of the notification. a. Legal counsel advised the applicant of the basis for his contemplated separation and its effects, and of the rights available to him. The applicant elected not to submit statements in his own behalf and he waived representation by military or civilian counsel. b. He acknowledged that, he understood as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. c. His commander formally recommended he be eliminated from the Army due to unfitness and he be furnished an Undesirable Discharge Certificate. The reason for the recommended action was based on the applicant’s failure to function as an effective Soldier, 4 periods of AWOL, 5 Article 15’s (NJPs), 1 special court-martial, and his complete lack of motivation for rehabilitation. d. On 24 June 1970, the applicant provided an affidavit and stated, in pertinent part: * his periods of AWOL were from 8 April to 12 May 1969; 9 July to 15 December 1969; 16 December 1969 to 29 January 1970; 30 January to 22 May 1970 * he received 5 Article 15’s (NJPs) and 1 special court-martial * he would not return to duty under any circumstances e. The intermediate commander recommended approval of the elimination action. On 2 July 1970, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s elimination from the Army and directed that he be given an Undesirable Discharge Certificate. The separation authority also directed the applicant be reduced to the lowest enlisted grade prior to discharge. 14. On 8 July 1970, a Statement of Medical Condition shows the applicant indicated he underwent a separation medical examination more than 3 working days prior to his departure from place of separation and there had been no change in his medical condition. 15. The applicant was discharged from the Army on 8 July 1970. His DD Form 214 shows he was discharged under the provisions of AR 635-212 for unfitness. His character of service was listed as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 1 year and 7 months of net service with “405” days of lost time. He was awarded or authorized the National Defense Service Medal. 16. On 31 August 2021, the Army Review Boards Agency, Case Management Division, sent a letter to the applicant requesting that he provide a copy of the medical documents that support his contentions and/or service connected mental health issue of PTSD. He did not respond. 17. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 18. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. In pertinent par, the regulation stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 19. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) 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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 20. 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. Boards are 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 misconduct that led to the discharge. 21. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 22. 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. His hardcopy military medical records were not available for review. A review of his service record indicates he completed a separation physical on 3 Jun 1970. He met retention standards IAW AR 40-501. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. The applicant asserts PTSD is a mitigating factor but did not provide any medical documentation for review. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health condition at the time of his discharge. He met retention standards at the time of his discharge. There is no documented psychiatric diagnosis to consider with respect to mitigation of misconduct. If subsequent documentation of a PTSD diagnosis is provided, PTSD would be 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, 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, and the reason for his separation. The Board considered the medical records and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 is missing decorations, medals, badges, commendations, citations, and campaign ribbons awarded or authorized. As a result, amend the DD Form 214 by adding the following entries to item 24 (decorations, medals, badges, commendations, citations, and campaign ribbons awarded or authorized): * Sharpshooter Qualification Badge with M-14 Rifle Bar * Parachutist Badge * Expert Qualification Badge with M-16 Rifle Bar * Vietnam Service Medal * Republic of Vietnam Campaign Medal * Overseas Service Bar 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 Army Board for Correction of Military Records (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. Army Regulation 635-212 (Discharge Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. In pertinent par, the regulation stated an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. On 3 September 2014, the Secretary of Defense (Honorable Mr. Hagel) 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. The memorandum also contains guidance that states: a. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. b. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 3. 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. Boards are 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 misconduct that led to the discharge. 4. 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. a. 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. b. 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. 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. 5. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. It stated that all decorations, service medals, campaign credits, and badges awarded or authorized will be entered on the DD Form 214. 6. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states 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. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011500 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1