IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20150016671 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: 4 January 2018 DOCKET NUMBER: AR20150016671 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: 4 January 2018 DOCKET NUMBER: AR20150016671 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 his under other than honorable conditions discharge be upgraded to an honorable discharge (HD). 2. The applicant states, in effect: a. His service was honorable based on the fact that he voluntarily served his country and fought in a foreign land. b. When he returned from Vietnam, he was stationed in Colorado, his pregnant wife became very ill, and he had no friends or family to assist them. His request to take his wife to her family home was denied. For the health of his wife and unborn child he took her home and then reported in at Fort Campbell, KY. c. Upon arrival at Fort Campbell, he requested transfer to that location and he was told that was not possible. He was then offered a discharge in lieu of trial by court-martial, which he accepted. d. He states he is suffering from post-traumatic stress disorder (PTSD). 3. The applicant provides no supporting documentation. 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 this case 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 for timely filing. 2. The applicant enlisted in the Regular Army on 29 September 1969, completed training, and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 3. On 18 May 1970, at a special court-martial, the applicant was found guilty of being absent without leave (AWOL) for the period 13 January through 13 April 1970. His punishment included confinement for 4 months of which he appears to have served only 1 month. 4. The applicant was retrained in MOS 63 A (Wheeled Vehicle Repairman). During this period of retraining he was AWOL from 8 – 17 September 1970. 5. Prior to arriving in Vietnam the applicant was AWOL from 29 November through 11 December 1970. He served in Vietnam from 20 December 1970 through 7 December 1971. 6. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on: * 25 September 1970, for being AWOL from 8 through 17 September 1970 * 14 December 1970, for being AWOL from 29 November through 11 December 1970 * 17 April 1971, for improperly discharging a firearm * 2 August 1971, for failure to follow a lawful order * 19 September 1971, for failure to follow a lawful order and failure to go to his place of duty on two occasions 7. In addition to the above periods of AWOL, the applicant was also AWOL from 14 January through 17 February 1972 and 22 February through 7 June 1972. Court-martial charges were preferred against him for these periods of AWOL. 8. On 29 June 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a punitive discharge). He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an undesirable discharge (UD) certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD. 9. On 13 July 1972, the discharge authority approved the applicant's request and directed that he be reduced to the lowest enlisted grace and discharged under conditions other than honorable under Army Regulation 635-200, chapter 10 for the good of the service, in lieu of trial by court-martial. 10. The applicant was discharged under other than honorable conditions on 14 July 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows: * 1 year, 10 months, and 21 days of creditable active service * six periods of lost time totaling 330 days * no authorized awards or decorations * he was discharged in the rank of private/E-1 11. The applicant's DA 20 (Enlisted Qualification Record) shows the following: * highest grade he held was specialist four/E-4, effective 21 June 1971 * reduction to a private/E-1 on 7 July 1972 * service in Vietnam from 20 December 1970 through 7 December 1971 * service in Vietnam during one campaign period * 5 periods of AWOL and two periods of confinement * award of the: * National Defense Service Medal * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Expert Marksmanship Qualification Badge with Rifle Bar 12. On 14 March 1974, the Army Discharge Review Board denied his request for an upgrade of the characterization of his service. 13. On 19 April 1976, the applicant was notified that his file had been reviewed under Presidential Proclamation 4313 and he was granted a Clemency Discharge that restored his civil rights, but did not affect his underlying character of service. 14. On 6 March 1979, the Army Discharge Review Board reviewed the applicant's discharge under the provisions of the DOD Discharge Review Program (Special) (SDRP) and the uniform standard requirement of Public Law 95-126. It was determined that the applicant did not meet criteria for an upgrade under these provisions of law. 15. During the processing of this case the Army Review Boards Agency Senior Medical Advisor provided an advisory opinion. After reviewing the available records, the Senior Medical Advisor concluded there is no clear nexus between the applicant's pattern of misconduct and his claim of having PTSD symptoms at the time. The Senior Medical Advisor noted the applicant had three periods of AWOL prior to serving in Vietnam, one period while in Vietnam, and two periods following his service in Vietnam. The Senior Medical Advisor found no clear nexus between the three periods of pre-deployment AWOL and the applicant's report of a very abusive father during childhood. 16. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. REFERENCES: 1. 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 restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. Upon successful completion of the alternate service, former members would be granted a clemency discharge by the President of the United States, thus restoring his or her affected civil rights. The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration. The Proclamation identified three categories of persons and permitted them to apply for a clemency discharge. Those categories were: * civilian fugitives who were draft evaders, * members of the military who were still AWOL, and/or * former military members who had been discharged for desertion, AWOL or missing movement 2. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD SDRP required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 3. Public Law 95-126 was enacted in October 1978. This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required, including Clemency Discharges. Individuals whose discharges were upgraded but were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review. 4. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. Chapter 3, outlines the criteria for characterization of service as follows: (1) Paragraph 3-7a states that an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. (2) Paragraph 3-7b states that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. (3) Paragraph 3-7c states that an under other than honorable conditions discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. b. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under conditions other than honorable was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable 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 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. 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; 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. DISCUSSION: 1. The applicant's misconduct commenced shortly after completion of his first MOS training in 1970, well before his service in Vietnam. 2. A pattern of misconduct continued throughout his entire period of service as demonstrated by the special court-martial, five NJPs, and 330 days of lost time. Three of the NJPs were administered while he was serving in Vietnam. 3. The available records do not contain any evidence confirming that his wife had medical/pregnancy problems that mitigated his last periods of AWOL following his return from Vietnam. 4. The available records do not contain any evidence of a diagnosis of PTSD or other mental health issues, either now or while he was on active duty, that could have been a causal or a contributing factor in his repeated misconduct. The medical advisor in this case found no clear nexus between the applicant's pattern of misconduct and his claim of having PTSD symptoms at the time 5. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. There is no indication that his request was made under coercion or duress. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016671 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016671 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2