IN THE CASE OF:	  

		BOARD DATE:	    14 November 2013

		DOCKET NUMBER:  AR20130004433 


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 an upgrade of his under other than honorable conditions discharge.  

2.  The applicant states:  

* his military records went missing upon his departure from Vietnam which prevented him from following up on military actions against him
* former President Carter instituted an amnesty program that allowed for an automatic upgrade of an undesirable discharge
* he still has not received a complete transcript of his military records

3.  The applicant provides:

* General Orders (GO) Number 2501 awarding him the Army Commendation Medal for Heroism
* Company Commander's statement
* Two DA Forms 8-274 (Physical Profile)
* Selected medical documents
* Chronological Record of Medical Care
* Complaints of Wrongs and Refusal to Redress Grievances
* Appeal of an Article 15
* Self-authored statement



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Having had prior service in the Army National Guard, the applicant was ordered to active duty on 13 May 1968 and he held military occupational specialty 91A (Medical Corpsman). 

3.  On 20 September 1968, at Fort Carson, CO, he declined trial by a court-martial and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possessing prescription medicine taken from the brigade dispensary. 

4.  He served in Vietnam from on or about 7 January 1969 to on or about 18 August 1969.  He was initially assigned to the 4th Battalion, 47th Infantry.  A request for reassignment was initiated in or about May 1969 due to a physical profile.  

5.  The applicant was reassigned to the 9th Medical Battalion, 9th Infantry Division.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal, Combat Medical Badge, and Army Commendation Medal with "V" Device.

6.  On 30 June 1969, in Vietnam, he declined trial by a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  He appealed his punishment but his appeal was denied on 7 July 1969.

7.  On 13 July 1969, in Vietnam, he again declined trial by a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to obey orders from superior noncommissioned officers.  He elected not to appeal his punishment.

8.  On 14 July 1969, the applicant underwent a psychiatric evaluation for the purpose of separation action.  His mental examination revealed no psychiatric disease.  The applicant was capable of distinguishing right from wrong and adhering to the right.  There was no evidence of a functional or organic mental illness.   

9.  On 14 July 1969, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The applicant acknowledged receipt of the separation memorandum on the same date.

10.  On 15 July 1969, the applicant underwent a separation physical at the 9th Medical Battalion in Vietnam.  The Report of Medical Examination noted his bilateral chondromalacia of the knees secondary to joint effusion as well as deformity and arthritis to the left elbow secondary to an old fracture that existed prior to service.   The report further shows he was found medically qualified for service/separation. 

11.  On 17 July 1969, in Vietnam, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order from his company first sergeant.  This Article 15 is not filed in his record.  

12.  On 18 July 1969, the applicant submitted a statement to his commander wherein he stated that he (the commander) had wronged him in that he (the commander) decided to punish him upon the conclusion of a special court-martial by having him discharged.  He added that the commander proceeded to offer him Article 15s based on trumped up charges and placed his name on a Military Police blotter report alleging that he (the applicant) was absent without leave (AWOL) when he wasn't.  He petitioned the commander to grant him the following:

* Expedite the appeal of all of his Article 15s
* Grant him a rehabilitative transfer
* Grant him an early out
* Drop the discharge for unfitness action against him

13.  On 21 July 1969, the applicant's commander responded to the applicant's complaint of wrong by granting him the right to appeal the punishment of all three of his Article 15s dated 2 July 1969, 13 July 1969, and 19 July 1969.  The commander rejected the applicant's three other requests. 

14.  On 21 July 1969, the applicant's immediate commander initiated separation action against the applicant in accordance with Army Regulation 635-212 by reason of unfitness - habits and traits of character manifested by habitual shirking.  The immediate commander stated the applicant shirked his responsibilities such as making formations, following orders, and disobeying orders.

15.  On 30 July 1969, the applicant consulted with counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and appearance before a board of officers.  He elected not to submit a statement on his own behalf.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

16.  On 22 August 1969, his battalion commander recommended approval of the discharge action. 

17.  On 5 September 1969, prior to making a decision regarding his separation, the applicant was reported in an AWOL status and on 25 September 1969, he was dropped from the rolls as a deserter.  

18.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his service records contain:

	a.  Special Orders Number 53, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Jackson, SC, on 5 March 1971, returning him to military control effective 5 February 1971 with assignment to Fort Jackson, SC.

	b.  Special Orders Number 110, issued by Headquarters, U.S. Army Training Center, Infantry, Fort Jackson, SC, on 14 May 1971, ordering his discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion) effective “10 April 1971” (i.e., 21 May 1971) with an undesirable discharge. 

	c.  DA Form 20 (Enlisted Qualification Record) which shows in item 42 (Remarks) "Enlisted member [was] tried, convicted, and sentenced to two years in confinement for possession of unlawful drugs (South Carolina State Penitentiary)." 

	d.  A duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows was discharged on 28 May 1971 under the provisions of Army Regulation 635-206 by reason of confinement in the hands of civil authorities with a separation program number (SPN) of 284 (Misconduct - Conviction by Civil Court).  His character of service was under other than honorable conditions.  He completed 1 year, 2 months, and 13 days of active service during this period and he had 633 days of lost time.

19.  The applicant provides:

	a.  General Orders Number 2501, issued by Headquarters, 9th Infantry Division, on 3 March 1969 awarding him the Army Commendation Medal with "V" Device for heroism on 5 February 1969 in Vietnam. 

	b.  A statement, dated 29 July 1969, from his company commander who states he was assigned to the 4th Battalion, 47th Infantry at the time he (the author) was the commanding officer.  He did not have a great deal of opportunity to observe the applicant but he remembers the applicant carrying a man who was sick of heat exhaustion nearly 200 yards for evacuation.  He also remembers the applicant pulling him to cover and treating his wounds until he could be evacuated.  

	c.  A Physical Profile that shows he was not medically qualified for duty requiring prolonged walking or standing due to bilateral chondromalacia of the knees secondary to joint effusion.  

	d.  A Physical Profile that shows he was not medically qualified for duty requiring prolonged marching or walking due to deformity and arthritis to the left elbow secondary to an old fracture that existed prior to service. 

	e.  A self-authored statement, dated 24 February 2004 recounting his Vietnam experience. 

20.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

22.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

23.   Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies and procedures for the 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.  

24.  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.

25.  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.  

26.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (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 (2) 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 was made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records reveal a history of misconduct beginning prior to arriving in Vietnam including three instances of NJP and a history of shirking his responsibilities such as missing formations, following orders, and disobeying orders.  Accordingly, his chain of command initiated administrative separation action against him for unfitness in accordance with Army Regulation 635-212.  However, prior to making a final decision regarding this discharge action, the applicant departed his unit in an AWOL status and he was dropped from the rolls as a deserter.  

2.  Although the applicant’s record is void of all the complete facts and circumstances concerning the events that led to his ultimate discharge from the Army, there is sufficient evidence to show, while in a deserter status, the applicant was convicted by civil court in the State of South Carolina for possession of illegal drugs.  He was tried, convicted, and sentenced to two years of imprisonment.  

3.  His records also contain a DD Form 214 which shows he was discharged on 28 May 1971 under the provisions of Army Regulation 635-206 by reason of conviction by civil court with the issuance of an under other than honorable conditions discharge and an Undesirable Discharge Certificate.

4.  In the absence of evidence to the contrary, it must be presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and there is no indication of procedural errors that would have jeopardized his rights.  Additionally, it must also be presumed that the character of the discharge is commensurate with the applicant's overall record of military service.

5.  With respect to his arguments: 

	a.  The applicant was afforded the opportunity to appeal his punishment in each instance he received an Article 15.  In each instance, the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering all the evidence submitted by the applicant.  Also in each instance, the applicant waived his right to trial by a court-martial and opted for an Article 15 hearing.

	b.  The applicant's medical conditions are noted.  However, prior to separation the applicant underwent a medical examination and a mental status evaluation and he was found medically qualified for separation.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention.  

	c.  Contrary to his belief that Former President Carter authorized an automatic upgrade of an undesirable discharge, the "Carter Program" 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.  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 and/or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.

6.  The applicant's overall military service was marred with various types of misconduct that included lost time (AWOL) in addition to his civilian conviction.  While his offense occurred within the civilian community, it occurred while he was a deserter and clearly brought discredit upon him and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

7.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.






BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ 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.

ABCMR Record of Proceedings (cont)                                         AR20130004433



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ABCMR Record of Proceedings (cont)                                         AR20130004433



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