ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 March 2022 DOCKET NUMBER: AR20210015589 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record)” * Application for Disability Compensation and Related Compensation Benefits FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, 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, in effect: a. He came home from Vietnam in December 1971. He went to Fort Knox, Kentucky, which was a change. He was not able to adjust to being at Fort Knox. He began drinking and it got out of control. He got two driving under the influence (DUI) citations in a month and that's when he was discharged. He never received any help or counseling, during this time and he feels like he was never given a chance. Too many troops came home from Vietnam and there was no place for them. He did not deserve this. b. He didn't do his military occupational specialty (MOS) in Vietnam. His way of living changed to where he lost his hearing because of the big guns going off all the time. He flew supplies around to ground troops. He was shot at but they missed. He still cries at night and sees red troops coming at him. When he got home, no one asked if he was okay or if he needed help, which he did. It was much easier to put him out of the Army and grab the next person in line. There are too many like him and it is not right. 3. The applicant provides a Department of Veteran Affairs (VA) Application for disability Compensation and Related Compensation Benefits form for the Board's consideration, which shows the applicant had the following disabilities from his service in Vietnam: * hearing loss * diabetes * emphysema * heart disease * vivid nightmares 4. On 10 December 1969, at the age of 18 years, the applicant enlisted in the Regular Army for a period of 3 years. His DA Form 20 (Enlisted Qualification Record), shows he: a. Successfully completed basic and advanced individual training with conduct and efficiency ratings of excellent and was awarded military occupational specialty (MOS) 70A (Clerk Typist). b. Was promoted to private two/E-2 (PV2) on 10 April 1970, was promoted to private first class/E-3 (PFC) on 12 June 1970, was reduced to PV2 on 25 August 1970, was promoted to PFC on 10 January 1971, was promoted to specialist/E-4 (SP4) on 10 May 1971, was reduced to PFC on 7 Jun 1972, was reduced to PV2 on 2 August 1972, and was reduced to private/E-1 (PVT) on 8 September 1972. c. Had service in Vietnam from 10 January 1971 to 18 December 1971. 5. The applicant received Certificates of Training for: * The Clerk Course, 10 April 1970 * Basic Leadership Course, 11 February 1972 6. On 6 July 1971, he was issued a DD Form 214 showing he was honorably discharged on 6 July 1971. 7. On 7 July 1971, he reenlisted in the Army for a period of 3 years. 8. His service record is void of a separation packet, mental/behavior health examination, intermediate commander endorsement, and the separation approval. 9. His DD Form 214 shows he was discharged on 18 September 1972 under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability) with a UOTHC character of service. He was assigned separation program number 26B (Unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities). He completed 1 year, 2 months, and 12 days of net service during this period. 10. Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers 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, 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 unless the particular circumstances warranted otherwise. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. The applicant submitted an application for Department of Veterans Affairs (VA) disability and reported vivid nightmares due to his service in Vietnam. A review of the VA's Joint Legacy Viewer indicates the applicant has received treatment at the VA since August 2010. On 20 May 2011, he completed multiple Compensation and Pension (C&P) examinations for heart disease, diabetes, and scars. b. On 30 October 2019, he was evaluated in the behavioral health clinic. He reported being depressed due to his daughter abusing drugs and being homeless. He was diagnosed with Adjustment Disorder with anxiety and depression. On 5 November 2019, his diagnosis was changed to Depressive Disorder, unspecified and Cannabis Use Disorder. On 26 May 2021, his provider noted he was in hospice care with a diagnosis of other recurrent Depressive Disorder. He does not have a service connected disability rating. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. There is no information regarding the reason for his discharge so an opinion regarding mitigation can’t be provided. BOARD DISCUSSION: 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 deployment, and the reason for his separation. The Board considered the applicant's claim regarding his mental health and the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official that without knowing what misconduct led to his discharge it cannot be determined if his misconduct was mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections described in Administrative Note(s) below. 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: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise 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 NOTES: A review of his record provides pertinent information is missing from his DD Form 214 for the period ending 18 September 1972. As a result, correct the DD Form 214 by adding: * Vietnam Service Medal with two bronze service stars * National Defense Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), set forth the policy for administrative separation for Soldiers due to unfitness. It provided that Soldiers 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, 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 unless the particular circumstances warranted otherwise. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the separation of enlisted personnel, it provides: 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. 5. 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. 6. 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. 7. 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) AR20210015589 1 1