BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190012622 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20100025038 on 19 April 2011. Specifically, he requests his undesirable discharge be upgraded to an honorable discharge based on the recent development of possible Agent Orange related medical conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 7 July 2019 * an After Visit Summary from Novant Health Radiation Oncology FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100025038 on 20 April 2011. 2. The applicant states since his 2011 application to upgrade his discharge, he has been diagnosed with prostate cancer requiring a radical prostatectomy in February 2017. The cancer reoccurred in December 2018, precipitating eight weeks of daily radiation treatments. Per his oncologist, his exposure to Agent Orange during his 1968 deployment to Vietnam was a risk factor for developing prostate cancer. He senses a growing national appreciation and regard for combat veterans and sympathy for their issues. He is hopeful for leniency due to his health concerns and his advancing age. His doctor encouraged him to reapply for an upgraded discharge to qualify for Veteran’s benefits. He served his country proudly and bravely in Vietnam; it was after he returned that he had difficulties and failed to seek help then. 3. The applicant’s request for a reconsideration based on the development of additional medical conditions is a new issue warranting an additional review. 4. The applicant enlisted in the Regular Army on 16 February 1967, with parental consent at the age of 17 years, seven months, and four days. 5. The applicant served in Vietnam from on or about 2 December 1967 through on or about 26 November 1968, where he was assigned to Company C, 3rd Battalion (Airborne), 187th Infantry Regiment. He received an "excellent" conduct and efficiency rating during his tour of duty in Vietnam. 6. Summary Court-Martial Order Number 18, issued by Headquarters, 2nd Battalion (Airborne), 325th Infantry Regiment on 30 April 1969, shows the applicant was found guilty of being absent without leave (AWOL), from on or about 10 April 1969 through on or about 16 April 1969. 7. The applicant's record does not contain any of his separation processing documentation. However, Special Orders Number 32 Extract, issued by Headquarters, Personnel Center, U.S. Army Garrison Troop Command, Fort Bragg, NC on 13 February 1970, shows he was discharged under the authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service. He was assigned the separation program number (SPN) "246" and he was issued a DD Form 258A (Undesirable Discharge Certificate). 8. The applicant was discharged on 13 February 1970, under the provisions of Army Regulation 635-200, with an SPN of "246." He was discharged in the lowest enlisted grade and his service was characterized as under other than honorable conditions. 9. The record contains copies of award certificates for the Bronze Star Medal, Air Medal, Army Commendation Medal, and the Combat Infantryman Badge. 10. The Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his undesirable discharge on 3 July 1972. 11. The U.S. Department of Justice, Office of the Pardon Attorney, Washington, DC, on 16 December 1975, granted the applicant a full and unconditional pardon and a clemency discharge, under the direction Presidential Proclamation 4313 of 16 September 1974. This document states the clemency discharge replaced his undesirable discharge and he should be considered to have a neutral discharge. 12. The applicant's record contains an unsigned letter from the Office of the Adjutant General, dated 18 March 1976, informing him that he was awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974. The letter further informed him that he may apply to the ADRB or the ABCMR for review and possible change of his service characterization. 13. There is no evidence in the available record to show the applicant applied to the ADRB for an upgrade of his service characterization pursuant to receipt of a clemency discharge under Presidential Proclamation 4313. 14. The ABCMR reviewed and denied the applicant’s request for an upgrade on 20 April 2011. At that time, the issue of an upgrade based on the provisions of Presidential Proclamation 4313 and the SDRP were addressed. The ABCMR decisional document states: * there is no evidence that shows he was any less mature than other Soldiers of the same age who managed to serve honorably * the fact that he has endured the burden of a discharge under other than honorable conditions throughout his post-service life is not a basis for upgrading his discharge * the ABCMR does not grant a request for upgrade of a discharge solely for the purpose of removing a stigma * his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel * his service was deemed undesirable in view of his nonjudicial punishment and lost time due to AWOL 15. The NOVANT Health After Visit Summary is incomplete, only page 1 of 3 was provided. The information on that page relates only to his past history of treatment including prostate cancer but does not show an opinion that his cancer was related to Agent Orange exposure. 16. The Board should consider the applicant's petition, his service in Vietnam, award of three personal decorations, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the record of the applicant showing the applicant being awarded a CIB, Bronze Star, Air Medal for his service in Vietnam, as well as the type of misconduct leading to his discharge, the Board concluded that the current characterization of service was unjust. The Board recommended an upgrade to the characterization of service to Honorable . BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Honorable. 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. Presidential Proclamation 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 Presidential Proclamation 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 Veterans Administration (VA). 2. A Presidential Memorandum was issued by President Ford on 19 January 1977 [sometimes referred to as Presidential Proclamation 4313 Extension]. This memorandum mandated the issuance of a general discharge to individuals who had: a. applied for consideration under Presidential Proclamation 4313, b. been wounded in action or decorated for valor, and c. records 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. 3. 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 excused therefrom in accordance with Presidential Proclamation 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. 4. Public Law 95-126 provided for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: a. the addition of 180 days of continuous unauthorized absence for other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits, such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and b. prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination is made under the published uniform standards and procedures. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 6. Army Regulation 635-5-1 (Separation Program Numbers and Authorities), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214. This regulation identified the SPN of "246" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. 7. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel or Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. As the in effect a separation for the good of the service Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 8. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012622 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012622 7 ABCMR Record of Proceedings (cont) AR20190012622 4