IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010885 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x ___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010885 BOARD DETERMINATION/RECOMMENDATION: 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. _____________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. IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150010885 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his undesirable discharge to an honorable discharge. 2. The applicant states: a. He signed himself out of the Army because he needed to go home. At the time, his family was unable to afford rent and food. He left his address and telephone number in the sign out book. He also informed his commanding officer where he was going. He went to work the following day at I and B Enterprises in San Francisco, CA. b. He learned years later that the Federal Bureau of Investigation was looking for him. He turned himself into military authorities and went through discharge proceedings with the understanding that his discharge would be reverted to honorable in 2 weeks. However, that did not happen. He believes he should have received an honorable discharge as promised. He currently has medical issues based on his service in Vietnam. He was diagnosed with post-traumatic stress disorder (PTSD), anxiety, and depression. He also underwent surgery for prostate and bladder cancer. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army on 22 July 1969 and he held military occupational specialty 76Y (Armoror/Unit Supply Specialist). 3. On 29 August 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 19 through 20 August 1969. 4. He was promoted to pay grade E-3 on 13 January 1970. He served in Vietnam from 6 January through 14 August 1970. 5. He accepted NJP under Article 15, UCMJ, on/for: * 3 March 1970 – wrongfully appropriating a military 3/4 ton truck and being AWOL * 4 June 1970 – being AWOL on 30 May 1970; his punishment consisted of a reduction to pay grade E-2 and 14 days of extra duty and restriction; he did not appeal * 30 November 1970 – being AWOL from 17 through 25 November 1970; he did not appeal * 3 February 1971 – being incapacitated by intoxicating liquor for the proper performance of his duties and failing to report to his place of duty; his punishment consisted of a reduction to pay grade E-1, a forfeiture of $32.00 pay for 1 month, and 14 days of extra duty and restriction; he did not appeal 6. On 9 March 1971, his bar to reenlistment was approved. 7. He was reported AWOL on 22 March 1971 and was dropped from Army rolls as a deserter on 20 April 1971. He was returned to military control on or about 2 September 1974. 8. On 4 September 1974, the Commander, U.S. Army Personnel Control Facility, Fort Ord, CA, recommended the applicant be tried by special court-martial for the offense of being AWOL. 9. On 4 September 1974, a member of the Judge Advocate General’s Corps advised the applicant that he was pending trial by court-martial for being AWOL from 22 March 1971 through 2 September 1974. He also advised the applicant that he could voluntarily submit a request for discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the offense. He further advised the applicant that if his request was accepted he would normally be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He was advised of the results of the issuance of such a discharge. He also advised the applicant that the rumors were false that his undesirable discharge could easily be changed to an honorable discharge after his release or that after a certain time it automatically became honorable. He advised the applicant of his rights. 10. On 9 September 1974, after consulting with counsel, the applicant requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trail by court-martial for his AWOL offense. He acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also acknowledged that he was guilty of the charge against him and did not desire further rehabilitation. He further acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the results of the issuance of such a discharge. He waived his rights and elected to submit a statement in his own behalf. 11. In his statement, dated 9 September 1974, the applicant indicated he enlisted on 21 July 1969 and did not reenlist. He had NJP’s and no court-martial action. He first joined the Army for a job, but learned he could not take the harassment. He did not receive what he was looking for and the pay was too low. His wife and children could not live on the money he made. After his discharge he would continue working and raising his children. If he were to be returned to duty, he would go AWOL again. He understood that he would not receive any benefits and he would accept an undesirable discharge. 12. On 30 September 1974, after consulting with counsel, the applicant elected to participate in the President's Clemency Program and accept an undesirable discharge. In his statement, the applicant stated he left the Army because he was not making enough money to support his family. During his AWOL period he obtained a better paying and steady job. He reaffirmed his allegiance and pledged to complete alternate service. He also acknowledged in a letter of instruction that he must report to his State Director of Selective Service to arrange for alternate work within 15 days of receipt of his Undesirable Discharge Certificate. Further, the Clemency Discharge Certificate would not alter his ineligibility for any benefits predicated upon his military service. 13. He was discharged in pay grade E-1 on 30 September 1974, by reason of separation for the good of the service by reason of willful and persistent unauthorized absences pursuant to Presidential Proclamation Number 4313. He was credited with completing 1 year, 8 months, and 23 days of active service and he had 493 days of time lost. There is no record of valorous awards or a Purple Heart. He was issued an Undesirable Discharge Certificate. 14. His record is void of any evidence he satisfactorily completed the alternate service. 15. There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for a confirmation and/or upgrade of his discharge. 16. On 10 February 2016, the Army Review Board Agency requested by letter that the applicant provide medical records to support a diagnosis of PTSD. He was informed his application would be put on hold for 90 days to allow him an opportunity to provide medical records. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – A member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for a discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. b. Paragraph 3-7a – An honorable discharge was a separation with honor. 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 inappropriate. c. Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. 3. Alternate service was to be performed under the supervision of the Selective Service System (SSS). When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service. The military services issued the actual clemency discharges. The clemency discharge was a neutral discharge, neither honorable nor less than honorable. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully consider revised PTSD criteria, detailed medical considerations, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Quite often, however, the records of service members who served before PTSD was recognized, including those who served in the Vietnam theater of operations, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable condition characterization of service. DISCUSSION: 1. The applicant departed AWOL for the third time in March 1971 and was subsequently dropped from Army rolls. In September 1974, upon notification and after consulting with counsel, he voluntarily requested discharge for the good of the service pursuant to Presidential Proclamation 4313. The program was explained to him and he acknowledged he understood he would reaffirm his allegiance to the United States and perform alternate service for 24 months in exchange for a clemency discharge from the Army. 2. His record is void of evidence he completed his alternate service. Completing the requirements of the program provided for a clemency discharge, not a general or an honorable discharge. It would have restored his civil rights, but not change his underlying discharge. 3. His record is void of evidence showing he was diagnosed with PTSD. Upon a written request to provide medical documents to support a diagnosis of PTSD, he failed to respond. Thus, there is insufficient evidence to show mental health conditions prevented his satisfactory completion of his enlistment. It is acknowledged he served in Vietnam as a unit armorer. However, there is no evidence he served in direct combat operations with the enemy based on a lack of a valorous award or Purple Heart documented in his record. 4. His administrative separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations at the time with due process. 5. Current standards provide for liberal consideration in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct. As the applicant did not provide evidence to support a diagnosis of PTSD, the 2014 Secretary of Defense memorandum cannot be applied at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010885 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2