ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170018644 APPLICANT REQUESTS: An upgrade to his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), not very legible * Character reference from MB 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 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 he has been diagnosed with post-traumatic stress disorder (PTSD) and believes that it was a factor in the circumstances which resulted in his current discharge status. 3. The applicant provides a character reference statement from Mr. X___ which states that the applicant is a Vietnam veteran who served as a road grader in the jungles of Vietnam. During this time, he slept in tents, bathed in rivers and breathed the air infested with Agent Orange insecticide. A few years ago, it was determined that his diabetes was caused by exposure from Agent Orange. He was awarded 20 percent disability for this. As time has passed, his condition has declined. The quality of his life and the remaining life expectancy is unknown at this time, but his health is in declined. 4. A review of the applicant’s service record was unavailable. The following information was obtained: a. On 29 January, 2018, the applicant’s service records were requested by the Army Review Boards Agency Case Management Division from the National Archives and Records Administration (NARA). This agency (NARA) notified them that his records were unavailable for review. a. b. His service record contains a DD Form 214 which was not legible. It shows that he enlisted on or about 6 April 1966 and he was separated on or about 1 May 1970. The authority for his separation is not legible; however, he was assigned Separation Program Number (SPN) Code 28B (Unfitness). He completed 2 years, 5 months, and 3 days of active service. He had 603 days of lost timed. His characterization of service is shown as "under other than honorable conditions." He was awarded or authorize the following: * Expert Marksmanship Qualification Badge with Rifle Bar * National Defense Service medal * Vietnam Service medal * Republic of Vietnam Campaign medal * Good Conduct Service metal (1st AWD) 5. The Army Review Boards Agency (ARBA) medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 27 February 2018. The psychologist stated that the applicant met medical retention standards in accordance with chapter 3, Army Regulation (AR) 40-501 (Standard of Medical Fitness) and following the provisions set forth in Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. The applicant's medical conditions were duly considered during medical separation processing, based on presumption of government regularity. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 6. On 21 March 2018, the applicant provided a response and stated that he is a 71 year old Vietnam Veteran. He is writing this letter to request an upgrade for his second discharge. His first discharge was honorable. It is of paramount importance that this request is honored in a timely manner. According to the doctor, he is living on borrowed time. In 1977, President Gerald Ford said that all Vietnam Veterans were eligible to have their discharge upgraded if they served In Vietnam. When he first heard of this, he wrote and requested that his discharge be upgraded, believing that it would be done. However, ARBA wrote back to inform him that his records had been burned in a fire at SESAC headquarters where the records were stored. Therefore, there was no more proof of him ever serving in Vietnam. Since that time, he was able to obtain a copy of his DD Form 214 from his hometown courthouse and sent it in as proof that he was in Vietnam and his discharge should be upgraded as President Ford stated. He would appreciate it if ARBA would upgrade his discharge to a general discharge under honorable conditions as soon as possible. 1. 7. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) Soldiers separating under the provisions of chapter 13 for unfitness are assigned a separation code 28B. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate 8. Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. 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 DOD guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Although the facts and circumstances related to the administrative separation of the applicant was unavailable to review, based upon the amount of lost time (over 600 days), as well as the medical advisory’s finding that found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded there was insufficient evidence to show that an error or injustice was present which would warrant changing the characterization of service. 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 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 1-9e (General discharge) states a 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 a 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. c. Chapter 13-5a of that regulation provides that members are subject to separation for frequent incidents of a discreditable nature with civil or military authorities. If the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 3. AR 40-501 (Standard of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation 5. 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; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance 1. further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 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 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 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, 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. Army Regulation (AR) 635-200 7. .Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals. One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either a discharge under other than honorable conditions under PP 4313 or to stand trial for their offenses and take whatever punishment resulted. For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform. If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge. The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA. A Presidential Memorandum was issued by President Ford on 19 January 1977 (sometimes referred to as PP 4313 Extension). This memorandum mandated the issuance of a general discharge to individuals who had: (1) applied for consideration under PP 4313; (2) been wounded in action or decorated for valor; and (3) whose records were free of any compelling reason to deny relief. This was a mandate to the ADRB from the President and was to be applied by the ADRB without any applications from the affected individuals. Whether the individuals had performed alternate service was not an issue to be considered.