IN THE CASE OF: BOARD DATE: 20 September 2023 DOCKET NUMBER: AR20230001965 APPLICANT REQUESTS: affirmation of his clemency discharge and upgrade of the characterization of his service to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 2 November 2022 * Self-authored statement, 26 October 2022 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), 2 July 1970 * DD Form 215 (Correction to DD Form 214), 10 December 1975 * letter, Assistant Adjutant, Office of the Secretary of the Army, 30 December 1975 * letter, National Personnel Records Center (NPRC), 16 April 2019 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, in effect: a. He believes he has Post-Traumatic Stress Disorder (PTSD) as the result of his Bad Conduct Discharge. His discharge was later changed to a Clemency Discharge by the President. A general discharge would help him with benefits. b. He has some personal history that needs to be explained. He had many failed relationships and incredible career opportunities from which he ran away. c. The events of Vietnam greatly affected his life. Several of his high school friends were killed in action there. He talked them out of going AWOL before they went to Vietnam. He was on leave after his advanced training but went AWOL before he got on the bus to Oakland Army Transition Center. His father was a 33 year career Naval Officer and wanted to help him get to Canada. He was surprised and told him not to mention it again. He turned himself into Fort Ord and asked if he could recycle to Fort Riley for reassignment, but his request was denied. d. He married and he and his wife gave birth to a daughter. He was in no shape to take care of his daughter after his wife died. He relapsed. His third wife was a nurse and helped him get sober. They had two sons together. They divorced but remained friends. He married again, divorced, and remarried again. e. He is in prison where he has a chance to make amends. With help from the system, he hopes to receive the proper health care for his PTSD. He is presently working on a degree of study and improving his spirituality. He is working on the STOP program and accepting responsibility for his actions. His presently suffering from medical and health issues, including PTSD, tinnitus, back and hip injuries, and depression. 3. The applicant provided copies of: a. His DD Form 149 application and a 5-page statement outlined above. b. His DD Form 214, 2 July 1970 c. A DD Form 215 issued to him on 10 December 1975. d. A letter from the Assistant Adjutant, Headquarters, Department of the Army, 30 December 1975, notifying him pursuant to Presidential Proclamation 4319, 16 September 1974, he was granted a Clemency Discharge and issued a DD Form 1953A along with a DD Form 215. f. A letter from NPRC, notifying him it was providing him a copy of his Official Military Personnel File. 4. A review of the applicant's service records shows: a. On 25 April 1968, he enlisted in the Regular Army for 3 years. At age 21. He completed Basic Combat Training at Fort Lewis, he completed Advanced Individual Training at Fort Lee, and he was awarded military occupational specialty 76Q (Special Purpose Material Supply Specialist). b. On 9 August 1968, he was promoted to specialist 4/E-4. c. His records contain DA Forms 168 (Extract of Morning Report), 29 October 1969, showing his duty status changed: * on 9 November 1968 from reassignment gain at U.S. Army Replenishment Station, Oakland, CA, to absent without leave (AWOL) * on 9 December 1968 from AWOL to dropped from the rolls (DRF) at U.S. Army Replenishment Station, Oakland, CA * on 14 January 1970 from DFR to present for duty at Special Processing Detachment, Fort Ord, after surrendering to authorities d. After consulting with legal counsel on 10 February 1970, he voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he acknowledged that the charges preferred against him under the UCMJ, authorized the imposition of a bad conduct discharge or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he would forfeit all accrued leave and be reduced to the lowest grade of E-1 * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and he elected to do so e. On 11 February 1970, he provided a statement for consideration with his request for discharge in lieu of trial by court-martial while at Special Processing Detachment, Fort Ord. It reads, in effect and in part: (1) Throughout his school years he was just an average student, but sometimes it was hard to be even that. His father was a career Navy officer, and his partial family was moving constantly. He became a very inwardly confused child and it grew with him. He struggled with his fate instead of searching for his destiny and it became fear in a little boy's mind. He ran away from home many times wondering what the purpose was, and why did he let his heart break at his drunken mother's scolding. With nowhere to go except aimless oblivion he prayed to be found instead of searching for himself. He looked for directions that were not where he was looking. He wanted the dramas living inside him dead and then his fate would die. Suicide was in all our lives not just one ultimate death, too bad, they say, he was a coward or it was fate that had him. (2) In high school he tried to find my reason and something for his spirit in LSD and many other drugs. He dropped as often as he could because this illusion was his only reality. Soon it was time for college. He quit twice; because what he wanted to learn could not be taught in rah, rah, school, or who is on the varsity team, and who could drink the most beer. This was a futile experience for him. He could not conceive as yet to write poems, to preach or to paint, neither he nor anyone else. The fate of the world lives in man and lies in his culture. (3) He was desperate to be taught and mold and learn the truth of this world before he could start his search. He did not know this before he joined the Army. He enlisted one day while wandering; it crossed his mind in a fit of glory while trying to be a man by social standards. His Army record showed no black marks against the service, but at Fort Lewis (BCT) he did go through very painful withdrawal symptoms and pleaded for psychiatric help. His inner self was calling him to safety. Afterwards it became impossible for him to become one of the guys. He could not participate much longer because his brain was bombarded constantly with profane living dispositions. At Fort Lee, he hoped it would be different but in really it did not change. At AIT he made MOS 76P20 and 76Q20 and made specialist 4 at the end of the instruction. His willingness to have anything to do with this cultural organization exploded into depression; complete mania; and more acid. Then injury came to pain in orders for training for Vietnam. His purpose could not be there but maybe a chance for suicide. Then his leave finally came and maybe a time to rebuild. He was going to go because it was a glorious thing to die for his country and victory for the real world. (4) He reported to Oakland, bewildered and confused. Safety for him could be found in reaching inside his dream into a relationship with a world of his own creation. All he had was this realization of suicide. Existence will die if we continue to live such vain little lives, he thought and reasoned. We can only explain the being beyond us as our father. He, Jesus, created by his Father, lived here as mortal beings should. They are his advocates, not man-made cultures or their selfish societies. Heroics in war and its technology are for men and their time, in created spectacular history for themselves. America is a fantastic country, but it will not become beautiful for all the worldly existence if our leaders stop becoming the statesmen they are supposed to be, instead of the politicians they are. America is playing a deadly game, as is the world, but we should not destroy ourselves with atheistic impulses. Some know exactly how many ounces of gun powder it takes to kill a man, but not how to pray to God, and not even how to be happy for a single, contented hour. If you hate a person, you hate something in him that is part of yourself. What is not part of ourselves does not disturb us. He lives in his dreams. Other people live in dreams, but not in their own; that is the difference. f. On 16 February 1970, the Commanding Officer, Company B (Provisional), U.S. Army Training Center (USATC), Infantry and Fort Ord, recommended disapproval of his request for discharge for the good of the service. His commanding officer noted that he was pending Special Court-Martial with authority to adjudge a Bad Conduct Discharge as the result of being AWOL from 9 November 1968 to 14 January 1970. g. On 20 February 1970, the Commanding Officer, HQ, Troop Command, USATC, Infantry and Fort Ord, recommended disapproval of his request. His intermediate commander noted he was AWOL for 431 days. h. On 2 March 1970, the Commanding General, HQ, USATC, Infantry and Fort Ord disapproved his request for discharge for the good of the service. i. Special Court-Martial Order Number 130, issued by HQ, USATC, Infantry and Fort Ord, shows he was found guilty of absenting himself from his unit, Overseas Replacement Station, Oakland CA, from on or about 9 November 1968 until on or about 14 January 1970. He was sentenced to be discharged with a bad conduct discharge. The sentence was adjudged on 10 March 1970. j. On 13 June 1970 the U.S. Army Court of Military Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, affirmed the findings of guilty and the sentence imposed. k. On 19 June 1970, the Judge Advocate General, USATC, Infantry and Fort Ord, attempted to serve a copy of the U.S. Army Court of Military Review to the accused but was unable to do so because he his status was AWOL. l. Special Court-Martial Order Number 130, issued by HQ, USATC, Infantry and Fort Ord, 24 June 1970, shows that in the applicant's special court-martial case, the findings and the approved sentence to bad conduct discharge, adjudged 10 March 1970 and promulgated in Special Court-Martial Order Number 130, HQ, USATC, Infantry and Fort Ord, 5 May 1970, was affirmed pursuant to Article 66. The accused having signed a Request for Final Action on 23 June 1970 and Article 71c having been complied with, the bad conduct discharge was executed. m. On 26 June 1970, he underwent a medical examination, and the examining physician noted no medical defects and diagnosis and found him qualified for release from active duty. n. On 26 June 1970, he gave a report of medical history and indicated he had good health. He also noted he had previously been a patient at (), , mental health center for drugs and nervousness. He further stated he was still on drugs off and on but was doing well. o. On 2 July 1970, he was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 11 with a separation program number of 292 and character of service of under other than honorable conditions. He completed 11 months and 2 days of net service this period and was discharged at grate/pay grade private/E-1. He had 431 days lost time from 9 November 1968 to 13 January 1970. He was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar. p. On 10 December 1975, the Adjutant General, Headquarters Department of the Army (HQDA) issued him a DD Form 215 adding in item 30 (Remarks) of his DD Form 214, "DD Form 1953A Clemency Discharge issued pursuant to Presidential Proclamation Number 4313. q. A letter issued by the Assistant Adjutant General, HQDA, 30 December 1975, notified him he was being awarded a clemency discharge pursuant to Presidential Proclamation Number 4313. It advised him he may apply to the Army Discharge Review Board for review and possible change to his discharge and provided him a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 5. On 20 March 2023, the Director, Case Management Division requested the applicant provide medical documents in support of his medical and health and the applicant has not responded to date. 6. 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. 7. Presidential Proclamation Number 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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting an upgrade of his 2 July discharge characterized an under conditions other than honorable. He had state: “Now after all these years of confusion and unreasonable failures I believe may be the result of PTSD.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 15 January 1970 and was discharged on 20 April 1971 under the provisions provided in chapter 11 of AR 635-200, Personnel Management – Enlisted Personnel: Dishonorable and Bad Conduct Discharge. It shows 431 days lost under 10 USC 972 (9 November 1968 thru 12 January 1970). d. On 11 February 1970, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. From his self-authored statement: “Heroics in war and its technology are for men and their time, in created spectacular history for themselves. America is a fantastic country, but it would not become beautiful for all the worldly existence if our leaders stop becoming the statesmen they are supposed to be, instead of the politicians they are. America is playing a deadly game, as is the world, but we should not destroy ourselves with atheistic impulses. Some know exactly how many ounces of gun powder it takes to kill a man, but not how to pray to God, and not even how to be happy for a single, contented hour. If you hate a person, you hate something in him that is part of yourself. What is not part of ourselves does not disturb us. I live in my dreams - that is what you sense. Other people live in dreams, but not in their own; that is the difference.” e. The commanding general of the United States Army Training Center, Infantry, and Fort Ord disapproved his request on 2 March 1970. f. On 5 May 1970, a court marital found him guilty of absence without leave from 9 November 1968 to 14 January 1970. g. The applicant went AWOL again on 20 June 1970 h. He underwent a pre-separation medical examination on 26 June 1970. The provider documented a normal examination, noted no defects or diagnoses, and the applicant was found qualified for separation with a bad conduct characterization of service. i. No medical documentation was submitted with the application and there are no encounters in AHLTA because of the period of service under consideration. j. Review of his records in JLV found no encounters or diagnoses. k. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a medical condition is not warranted. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? NO (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding a discharge upgrade based upon a medical condition is not warranted. The Board found insufficient evidence of in-service mitigating factors to overcome the serious misconduct. The applicant no provided post-service character letters of support to weigh a clemency determination. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. Therefore, the Board denied relief. 2. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of his medical conditions to support a discharge upgrade. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is the principle that government officials properly discharged their official duties unless there is evidence showing otherwise. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. By law (10 USC 1552), court-martial convictions stand as adjudged or modified by appeal through the judicial process. This Board 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. The ABCMR does not have authority to set aside a conviction by a court-martial. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 1-9 provided: (1) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Only the honorable characterization may be awarded a member upon completion of his/her period of enlistment or period for which called or ordered to active duty or active duty training or where required under specific reasons for separation unless an entry level status separation (uncharacterized) is warranted. (2) 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 separation specifically allows such characterization. It will not be issued to Soldiers solely upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. b. Chapter 11 provided that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court­martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 4. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents that would be furnished each individual who was separated from the Army, including Active Duty Training (ACDUTRA) personnel, and established standardized procedures for the preparation and distribution of these documents. a. A DD Form 214 will be issued at the time of separation to each member of the Regular Army and to each member of the Reserve Components, and the Army of the United States without component, called or ordered to active duty for ACDUTRA for a period of 90 days or more. b. Appendix A. Separation Program Number and Authority Governing Separation. (1) The separation program number "292" corresponded to the authority, Army Regulation 635-200, chapter 11, and the narrative reason "Other than desertion (Court- Martial)." (2) The separation program number "290" corresponded to the authority Army Regulation 635-200, chapter 11, and the narrative reason "Desertion (Court-Martial)." 5. 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 public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained. 6. 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 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 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. 7. 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 under other than honorable conditions 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. 8. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 9. 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. 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, 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. 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. 10. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 11. Title 5, U.S. Code, section 552(b)(5) provides exemption for release of internal records that are deliberative in nature and are part of the decision making process that contain opinions and recommendations; and section 552(b)(6) provides exemption for release of records which if released, would result in a clearly unwarranted invasion of personal privacy. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001965 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1