IN THE CASE OF: BOARD DATE: 8 April 2022 DOCKET NUMBER: AR20210016853 APPLICANT REQUESTS: * In effect, reconsideration of his previous request to upgrade his undesirable discharge under other than honorable conditions * Permission to appear personally before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two letters of support * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Two After Visit Summaries, with attached medication lists * Health Summary FACTS: 1. Incorporated herein by reference are military records, as were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC94-10290, on 8 March 1995. 2. The applicant states, in effect, he enlisted into the Army in 1968, and he was a very obedient service member who took all of his orders in stride with no issues. a. In 1970, he received news of his mother's breast cancer diagnosis and, as you can imagine, hearing this was devastating for the applicant and his family; he wanted to ensure he had time to spend with his mother before anything bad happened. b. On learning of his mother's illness, the applicant immediately went to his sergeant and requested leave to go home and console his mother and his younger siblings (the applicant was the eldest); however, to his dismay, the leadership denied his request with no explanation. The applicant was, at the time, unaware that he could ask for help from the Red Cross, and no one told him that he could request a hardship discharge; he added, "no one informed me of any option that was available to me as a young African American vet." Because he believed he had no choice, he felt compelled to leave, in an absent without leave (AWOL) status, to help his mother and baby brothers and sisters. Once he returned to his post, his chain of command placed him in solitary confinement for 30 days, and then released him under other than honorable conditions. c. The applicant declares that it is with great remorse that he pleads for the Board to overturn his character of service. He has always been a family man, and "to be put in that perspective it was very hard for me." The applicant affirms he loved his job in the Army, but he also knew he had only one mother, and he did not want her to leave this earth without first seeing her. The applicant states he is now suffering from a multitude of illnesses that stem from his exposure to Agent Orange during his Vietnam service; he is desperate to secure help from the Department of Veterans Affairs. On his DD Form 149, the applicant has checked the following two boxes in item 13 (Are any of the Following Issues/Conditions Related to Your Request): PTSD (post-traumatic stress disorder) and Other Mental Health Conditions. 3. The applicant provides letters of support from his spouse and a friend with whom he entered Army service; in addition, he submits medical documentation that describes visits to healthcare providers. a. The applicant's wife states her husband is a loving father and dedicated family man who, upon learning his mother had cancer, did what any loving child would do if denied leave for no clear reason. The applicant's friend recalls when the applicant's mother received a cancer diagnosis, and that the applicant tried to come home to help his brother and sister, but went AWOL after they disapproved the applicant's leave request. b. Two After-Visit Summaries show the results of medical appointments with two of the applicant's healthcare providers; both indicate the physicians are treating the applicant for Type 2 Diabetes, kidney disease, and other medical conditions. A Health Summary lists 19 medical conditions for which the applicant is receiving medical care. 4. The applicant's service records show: a. On 22 April 1968, the applicant enlisted into the Regular Army for 3 years; he was 18 years old. Upon completion of initial entry training and the award of military occupational specialty 11D (Armor Intelligence Specialist), orders assigned the applicant to an armor unit on Fort Knox, KY, and he arrived on 9 October 1968. Effective 26 October 1968, the applicant's leadership promoted him to private first class (PFC)/E-3. b. On 9 January 1969, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a staff sergeant's (SSG) order to clean the latrine; the imposing commander's punishment included reduction to private (PV2)/E-2; (the applicant's DA Form 20 (Enlisted Qualification Record) does not indicate the foregoing reduction was executed). Orders subsequently transferred the applicant to Vietnam, and he arrived at his new unit (2nd Battalion, 2nd Infantry Regiment), on 28 March 1969. c. On 30 May 1969, the applicant accepted NJP for disobeying his company commander's order not to buy items from Vietnamese peddlers; the applicant's punishment included reduction from PFC to PV2. On 11 July 1969, 1st Infantry Division Special Orders awarded the applicant the Combat Infantryman Badge (1st Award). On 29 July 1969, the applicant's unit promoted him back to PFC, effective 1 July 1969. On 24 September 1969, the applicant completed his combat tour in Vietnam, and orders reassigned him to a cavalry troop on Fort Meade, MD; on 7 November 1969, the applicant arrived at his Fort Meade unit. d. On 20 November 1969, the applicant accepted NJP from his troop commander for failing to report to Reveille Formation, and for using disrespectful language toward a platoon sergeant, saying, "You Goddamn M__-F__"; the imposing commander's punishments included reduction to PV2. On 22 December 1969, the applicant accepted NJP from his squadron commander for using disrespectful language toward an SSG, by saying, "F__ you...I am taking a break, and will do it when I am ready." The squadron commander reduced the applicant to private (PV1)/E-1. e. On 6 February 1970, the applicant accepted NJP for having been AWOL from 0600 hours, on 2 February 1970, until 0600 hours, on 3 February 1970. On 6 February 1970, the applicant's troop commander (Captain (CPT) W__) found the applicant guilty, and he directed the applicant forfeit $28 per month for one month and perform 14-days' of extra duty and restriction; on 7 February 1970, the applicant indicated he would not appeal the NJP. f. On 6 March 1970, the applicant's Fort Meade unit reported him as AWOL and dropped him from unit rolls that same day, citing paragraph 29d (When to Drop an Absentee as a Deserter), Army Regulation (AR) 630-10 (AWOL and Desertion). (Paragraph 29d directed commanders to drop absentees from unit rolls as soon as possible if the absentee was awaiting disposition of a previous unauthorized absence, which had continued for more than 24 hours). On 12 March 1970, the applicant's troop commander (CPT W__) prepared a memorandum, Subject: Commanding Officer's Inquiry of AWOL. The commander stated he had found evidence of the applicant's excessive indebtedness, he noted the applicant had received three NJPs while assigned to the unit, and he opined the applicant might remain AWOL for a long time. g. On 10 April 1970, the applicant returned to military control at a Baltimore, MD police station and, on 11 April 1970, his Fort Meade leadership placed him in confinement. On 15 April 1970, the applicant's unit preferred court-martial charges against him for having been AWOL from 6 March until 10 April 1970 (34 days). h. On 17 April 1970, after consulting with counsel, the applicant requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). In his request, the applicant affirmed no one had subjected him to coercion, that his counsel had advised him of the implications of his request. The applicant elected not to submit a statement in his own behalf. i. On 22 April 1970, the applicant's troop commander (First Lieutenant A__) indorsed the applicant's separation request, recommending approval of the request with an undesirable discharge. The commander stated the applicant was a "totally unsatisfactory Soldier. Since joining this unit, he has been an almost constant disciplinary problem." "While under daily observation, it was noted that [applicant] was very indifferent to his superiors, and that his appearance and attitude were noticeably lacking. [Applicant] has argued with every commissioned officer in this unit. He has, on numerous occasions, been given a direct order by an officer and refused to obey that order." The regiment's commander added, "This man's past pattern of behavior suggests that his continued retention in the service would result only in added expense to the government for a court-martial and probable confinement, as well as subsequent disciplinary problems for his commander." j. On 19 May 1970, the applicant's troop commander (CPT W__) initiated bar to reenlistment action against the applicant; in support of this action, the troop commander cited three of the applicant's NJPs, administered respectively on 20 November 1969, 22 December 1969, and 6 February 1970. The applicant elected not to submit a statement in his own behalf. On 4 June 1970, Headquarters, Fort Meade approved the bar. k. On 8 June 1970, the separation authority approved the applicant's separation request and directed his undesirable discharge under other than honorable conditions; on 22 June 1970, orders discharged the applicant accordingly. His DD Form 214 shows he completed a net total of 1 year, 10 months and 13 days of his 3-year enlistment contract, with 107 days of lost time. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, and a marksmanship qualification badge. l. On 15 April 1994, the applicant petitioned the ABCMR, requesting an upgraded character of service. (1) The applicant explained he had received word from relative that his mother had cancer and was dying; he informed his commander of the news and asked for leave, but the commander, "point blank," said no. The applicant told the commander he was going home, and, as he left, no one tried to stop him; the applicant ended up being AWOL for about 40 days, returning after his mother started doing better. (a) Prior to leaving home, the applicant called his unit to say he was coming back; when he arrived at a bus depot in Baltimore, two military police (MP) apprehended him and transported him to Fort Meade. (b) The MPs dropped the applicant off at his unit, and he waited about 3 hours for his commander. When his commander finally showed up, he looked very angry. The commander said, "Boy, you are in big trouble! Today is Sunday, my football day, and you have disturbed me." The commander directed the applicant to stand in the hallway and wait. After 45 minutes, they brought the applicant to the Post Stockade; he initially stayed in a holding cell, for about 2 weeks, and then they moved him into a barracks, where the applicant remained until his release, 6 months later. (2) On 8 March 1995, after considering the applicant's arguments and reviewing the applicant's service record, the Board voted to deny relief. The Board pointed out the alleged error or injustice would have occurred on 22 June 1970, the date of the applicant's discharge; as such, the applicant should have filed his ABCMR application no later than 22 June 1973. With his 15 April 1994 request, the applicant had not included a satisfactory explanation for his delay; further, he had not provided a sufficient justification for the Board to conclude that it would be in the interest of justice to grant the applicant's request. 5. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. The applicant requests the Board reconsider its previous denial of relief. a. During the applicant's era of service, Soldiers charged with UCMJ violations, for which a punitive discharge was an authorized maximum punishment, could request separation under chapter 10, AR 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The Manual for Courts-Martial, then in effect, showed a punitive discharge was one of the available maximum punishments for violations of Article 86 (AWOL for More than 30 Days). b. The ABCMR is unable to grant requests for upgraded characters of service solely to make the applicant eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 7. 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 record was not available for review. The applicant checked blocks for PTSD and other mental health as conditions related to his upgrade request. No medical records documenting a PTSD diagnosis or other psychiatric condition were provided for review. 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. While it is acknowledged that the applicant served in Vietnam, he stated in his application to the board that he went AWOL because he was not granted leave when he found out his mother had breast cancer. Per his statement, he returned to military control after his mother started getting better. 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 diagnosis at the time of his discharge. There is no documented psychiatric condition to consider with respect to mitigation of the misconduct that led to his discharge. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A 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. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical review 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 reviewing official. The Board concurred with the medical reviewer finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements, but did provide 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. 3. 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 :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. AR 600-8-22 states a bronze service star is awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Tet 69/Counteroffensive (23 February 1969 to 8 June 1969) * Summer-Fall 1969 (9 June 1969 to 31 October 1969) 3. Department of the Army Pamphlet (DA PAM) 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Orders (DAGO) Number 53, dated 1970, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class, to the 2nd Battalion, 2nd Infantry Regiment, for the period October 1965 to 7 April 1970. b. DAGO Number 50, dated 1971, awarded the Valorous Unit Award to the 2nd Battalion, 2nd Infantry Regiment for the period 23 to 25 May 1969. c. DAGO Number 8, dated 1974 awarded all units in Vietnam with the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 4. As a result, amend the applicant's DD Form 214, ending 22 June 1970, by deleting the Vietnam Service Medal, and adding the following: * Vietnam Service Medal with two bronze service stars * Valorous Unit Award * Republic of Vietnam Civil Actions Honor Medal, First Class * Republic of Vietnam Gallantry Cross with Palm REFERENCES: 1. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Separation authorities were to conditions the issuance of an honorable discharge based upon proper military behavior and proficient duty performance. In addition, separation authorities could characterize a Soldier's service as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction. b. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or a general discharge, if warranted. 2. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available maximum punishment for violations of Article 86 (AWOL for more than 30 days). 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (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. 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 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. 6. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016853 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1