ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20160017018 APPLICANT REQUESTS: upgrade his general, under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Statement in Support of Claim) * Medical document dated 14 December 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 that the Army Discharge Review Board (ADRB) upgraded his under other than honorable conditions discharge to general under honorable conditions discharge. He needs a decision from the ABCMR regarding the correction of his military records in order to receive Veterans Administration (VA) benefits. This should have been done after the ADRB on 17 July 1979. Please grant the correction to his records as he is suffering from Agent Orange related deseases and needs compensation from the VA. a. The bar does not apply if there were compelling reasons to warrant this act. The veteran’s absences of 27 September 1969 to 9 June 1970 and 11 February 1971 to 14 March 1972 met this criteria. b. In regards to the absent without leave (AWOL) from 27 September 1969 to 6 June 1970, his father died shortly after returning from Vietnam, where he participated in the TET offensive. He was suffering from posttraumatic stress disorder (PSTD), drinking heavily and using marijuana. When he sobered up and realized what he had done and he turned himself in to the Army. c. In regard to the AWOL from 11 February 1971 to 14 March 1972, he was still drinking heavily and using marijuana and he met a young lady who told him that she was pregnant and that he had to marry her. The marriage was not good they fought a lot during the 6 months they were together. Every time he was going to file for a divorce she would tell him that she was pregnant. He finally had enough and filed for a divorce and turned himself into the Army and served time in the stockade for AWOL. However, when he got out he started to drink and use drugs again. d. He asks the Board to consider these compelling reasons and charge the characterization of service to his discharge. He is suffering from conditions related to Agent Orange Exposure and PTSD. He has applied for VA benefits. Because of these medical conditions and his age he is unable to maintain employment and needs to have his request for VA benefits granted. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 10 April 1967. b. He served in Vietnam from 15 February 1968 to 14 February 1969. c. He accepted nonjudicial punishment on 22 April 1969 for absenting himself from his unit without authority. d. He was convicted by a special court-martial. However, the complete facts and circumstances surrounding the applicant’s special court-martial are unavailable for the Board to review. The available record shows: (1) Special Court-Martial Order Number 618, dated 15 September 1970, shows all unexecuted portions of sentences to forfeiture of pay are suspended until 28 October 1970, at which time unless sooner vacated, the suspended portion of the sentence will be remitted without further action. (2) Special Court-Martial Order Number 684, dated 21 October 1970, shows effective 28 October 1970 all unexecuted portions of sentences to confinement at hard labor and forfeitures are remitted. e. On 16 March 1972, charges were preferred against the applicant for one specification of being AWOL from 11 February 1971 to 15 March 1972. His command recommended trial by a special court-martial authorized to adjudge a bad conduct discharge. f. After consultation with legal counsel on 22 March 1972, the applicant requested discharge for the good of the service under provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * he was not subjected to coercion * he was advised of the implications of the discharge * he understood that if the request for the discharge was accepted he may be discharged under other than honorable conditions and be furnished an undesirable discharge certificate * he may be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life * he may submit statements in his own behalf * he was afforded consultation with legal counsel g. On 22 March 1972, the applicant’s unit commander recommended approval of the discharge request and that he be issued an undesirable discharge certificate. h. On 28 March 1972, the applicant received a medical evaluation and the Chief of Department of Clinics stated that a complete review of physical and mental examinations did not reveal any defects that would contribute to the misconduct. In accordance with AR 40-501 (Standards of Medical Fitness), the applicant was physically and mentally fit for duty with profile limitations. He was responsible for his acts and able to understand and participate in board proceedings. i. On 10 and 12 April 1972, the applicant’s battalion and brigade commanders recommended approval of the request for discharge and recommended an undesirable characterization of service. j. On 1 May 1972, the separation authority approved the discharge under provisions of chapter 10, AR 635-200, the applicant be reduced to the lowest enlisted grade private (PVT)/E-1 and be issued an Undesirable Discharge Certificate. k. Special Court-Martial Order Number 271, dated 27 September 1972 reduced the applicant to PVT/E-1 for misconduct, effective 1 May 1972. l. He was discharge from active duty on 6 October 1972. His DD Form 214 show she was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service. His DD form 214 shows he completed 3 years and 21 days of active service with 885 lost days. m. He applied to the Army Discharge Review Board and on 2 June 1976 for a discharge upgrade, his application for an upgrade of his discharge was denied. n. He again applied to the ADRB, and on 14 July 1977, his application for an upgrade of his discharge was approved. The ADRB directed his character of service upgraded from under other than honorable conditions to general under honorable conditions. A change to the DD Form 214 was issued. o. He applied to the ADRB again, but on 10 April 1979, his application for an upgrade of his discharge was denied. p. DD Form 215 (Corrections to DD Form 214) dated 20 April 1979, was issued that corrected item 27 (Remarks) to stated discharge reviewed UP PL 95-126 and a determination made that characterization of service was warranted UP DOD-SDRP 4 April 1977. q. DD Form 215 dated 30 May 1980, was issued that corrected as follows: * Item 9C (Authority and Reason) – Chapter 10, AR 635-200 SPD JFS * Item 27 – * discharge review upgraded PL 95-126 and a determination made that change in characterization of service is warranted by DOD Directive * administrative discharge conduct triable by court martial * delete: upgraded under the DOD Discharge Review Program (Special), date applied for discharge upgrade: 23 May 1977, date discharge was upgraded: 14 July 1977, character of service prior to upgrade: under honorable conditions r. The applicant applied to the Army Discharge Review Board and letter dated 9 June 1980, his application for an upgrade of his discharge was denied. 4. In the processing of this case, an advisory opinion, dated 24 April 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official stated that the applicant met medical retention standards for all medical, physical, dental and/or behavioral condition in accordance with chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501(Standards of Medical Fitness), and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. Alcohol dependence and marijuana abuse/dependence are not boardable medical conditions for physical disability evaluations system purposes. The applicant’s medical conditions were duly considered during the medical separation processing. A review of the available documentation found no evidence of medical disability or condition that would support a change to the character and/or reason for the discharge in this case. 5. The applicant was sent a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 6. By regulation AR 635-200, an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against him. 7. By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. 8. The Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He was discharged for multiple periods of AWOL and received an under other than honorable conditions character of service. He applied for an upgrade several times through the ADRB, and was granted relief with an under honorable conditions (General) character of service. He contends PTSD mitigated his misconduct. The medical advisory official determined there were no signs of mitigating factors during his period of service. The Board agreed that the applicant's discharge characterization granted by the ADRB was warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated an individual whose conduct has rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. The request for discharge may be submitted at any time after court-martial charges are preferred against him. An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if warranted. b. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age. Length of service, grade, and general aptitude. Where a member has service faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks he may be furnished an honorable discharge. c. Paragraph 1-9e (General Discharge) is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security the specific basis for such separation will be included in the individual’s military personnel record. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC). The regulation states: a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. b. Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay. c. The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 5. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with PP 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 6. 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 the 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 based on 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, 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 upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017018 7 1