BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003301 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 BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003301 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20130018327, dated 15 July 2014. ___________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. BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003301 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, in effect, reconsideration of his earlier request to upgrade his bad conduct discharge to honorable. 2. The applicant states he had a drug habit when he came back from Vietnam. Presidents Nixon and Johnson declared that no veteran returning from Vietnam would be kicked out if they were in a drug program. He was in a rehabilitation program at Fort Lewis, Washington. 3. The applicant provides a medical record, dated 28 September 2015. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130018327 on 15 July 2014. 2. The medical record provided by the applicant and his contentions are new evidence that were not previously considered by the Board and warrant consideration at this time. 3. The applicant enlisted in the Regular Army on 11 August 1969 for a period of 3 years. 4. He arrived in Vietnam on or about 5 November 1970. 5. On 13 January 1971, he was convicted by a summary court-martial of disobeying a lawful order and being disrespectful towards a first sergeant. 6. On 28 June 1971, he was convicted by a special court-martial of behaving with disrespect toward a captain (two specifications), being disrespectful toward a sergeant first class, and disobeying a lawful command. 7. He departed Vietnam on 4 November 1971. 8. On 19 January 1972, nonjudicial punishment (NJP) was imposed against him for absenting himself from his place of duty for approximately 9 hours. 9. On 2 March 1972, NJP was imposed against him for absenting himself from his appointed place of duty. 10. On 27 September 1972, he was convicted by a general court-martial of disobeying a lawful order and possessing heroin. He was sentenced to confinement at hard labor for 6 months, forfeiture of all pay and allowances, and discharge from the service with a bad conduct discharge. On 9 November 1972, the convening authority approved the sentence. 11. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 163, dated 15 February 1973, restored the applicant to duty pending completion of appellate review. 12. The U.S. Army Court of Military Review and convening authority decisions are not available for review. However, the evidence of record shows the U.S. Court of Military Appeals denied the applicant's petition for grant of review in July 1973. 13. He was issued a bad conduct discharge on 24 August 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial. He completed 3 years and 18 days of creditable active service with 356 days of lost time. 14. There is no evidence showing he was diagnosed with drug dependency prior to his discharge. 15. On 15 July 2014, the ABCMR denied his request for an honorable discharge. 16. He provided a medical record, dated 28 September 2015, showing he was diagnosed with acute myelogenous leukemia. 17. An advisory opinion was rendered by the Army Review Boards Agency Clinical Psychologist, dated 30 March 2017, wherein he stated: a. The applicant's medical records do not support him having had a boardable medical condition at the time of his discharge; he met mental health standards; the available case material did not support the existence of a mitigating mental health condition at the time of his misconduct; the available records did not include an exit medical examination, though his mental health was addressed during this period and found not to be mitigating; and based on available behavioral health evidence, there is insufficient evidence in available records to justify mitigation. b. The applicant met medical retention standards. c. The degree, if any, that the applicant's mental health conditions were considered at the time of his discharge from the Army is unknown, though he would have had the opportunity to raise these issues at his special court-martial hearing. d. A review of available documentation did not discover evidence of a mental health consideration that bears on the character of the discharge in this case. A nexus between the applicant's misconduct and his mental health was not discovered. 18. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. c. Chapter 11, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. The clemency discharge was created by the President on 16 September 1974 in Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters." Upon issuance to individuals who have an undesirable discharge or a punitive discharge, a clemency discharge serves as a written testimonial to the fact that the individual has satisfied the requirements of the President's program and has fully earned his/her return to the mainstream of American society in accordance with that program. 4. The clemency discharge is a neutral discharge, neither honorable nor less than honorable. It does not effect a change in the characterization of the individual's military service as having been under other than honorable conditions, nor does it serves to change, seal, erase or in any way modify the individual's past military record. Therefore, if the underlying discharge was issued as a result of a general court-martial, the issuance of a Clemency Discharge does not subject the underlying characterization to review under Title 10, U.S. Code, section 1553. DISCUSSION: 1. Although the applicant contends he had a drug habit after his return from Vietnam, there is no evidence and he provided no evidence showing he was diagnosed with drug dependency prior to his discharge on 24 August 1973. 2. He also contends he should not have been discharged because Presidents Nixon and Johnson declared that no veteran returning from Vietnam would be kicked out if they were in a drug program and that he was in a drug rehabilitation program at Fort Lewis. However, Presidential Proclamation 4313 pertained to a program for the return of Vietnam era draft evaders and military deserters. 3. His trial by court-martial was warranted by the gravity of the offenses charged. His record of service included two NJPs, one summary court-martial conviction, one special court-martial conviction, one general court-martial conviction, and 356 days of lost time. 4. His conviction and discharge were effected in accordance with applicable law and regulations and the type of discharge appropriately characterizes the misconduct for which he was convicted. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003301 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003301 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2