IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140006545 


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 his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states, in effect:

   a.  After returning to the United States from Vietnam, he went absent without leave (AWOL).  He turned himself in to military personnel and tried to explain that he could not "handle it mentally" and that he could not live a military life.  They did not care and gave him a general court-martial. 
   
   b.  He served as prescribed under the Constitution of the United States and by proclamation of Gerald R. Ford, the President of the United States.  He duly served the required alternative requirements and his discharge should be upgraded to show his character of service as "general."
   
   c.  He has enclosed numerous documents to include testimony that went before the U.S. Senate that not only approved President Ford's Proclamation but cites President George Washington, four other Presidents, and states veterans of the Armed Forces should be given amnesty and their discharges upgraded to a general, under honorable conditions.
   
   d.  He truly understands and apologies to the Government for what he did while he served during the Vietnam conflict.  Yes, he went AWOL; however, he was 18 years old when he returned from Vietnam.  He feels that under the circumstances in which he was treated by the American public, mentally justified him going AWOL.  However, at the age of 64, he now realizes he was wrong.  He has kept his nose clean and has tried to live honestly.  He believes that justifies an upgrade of his discharge.
   
   e.  He served in Vietnam from 21 December 1967 to 22 December 1968 while assigned to the 1st Cavalry Division.  They were engaged in numerous combat and hostile situations and were located 17 miles south of the demilitarized zone.  He cannot remember the number of casualties but to this day he can still see their faces and in some cases their body parts.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 215 (Correction to DD Form 214), 10 pages announcing the Presidential Clemency Program, and 276 pages of Congressional testimony/records in reference to the Clemency Program and procedures for its implementation.

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.  The applicant enlisted in the Regular Army on 1 August 1967 when he was 17 years and 9 months old.  He served in Vietnam from 22 December 1967 to 31 December 1968 while assigned to the 1st Battalion, 30th Artillery, 1st Cavalry Division.  He attained the rank/grade of private first class (PFC)/E-3 on 1 January 1968.

3.  On 12 February 1969, he was assigned to the 6th Battalion, 32nd Armor, Fort Knox, KY.  His DA Form 20 (Enlisted Qualification Record) shows he was reduced from PFC to private (PV2)/E-2 on 5 April 1969 as a result of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  This Article 15 is not available for review with this case.

4.  On 18 April 1969, he was reported in an AWOL status and on 17 May 1969 he was dropped from the rolls (DFR) as a deserter.

5.  On 21 May 1969, he was returned to military control at Fort Belvoir, VA, and assigned to the Personnel Control Facility (PCF), Fort Belvoir.

6.  He was reported in an AWOL status from the PCF from 22 May 1969.  

7.  His DA Form 20 shows his status as confined by civilian authorities from 27 March to 26 May 1971.  His record contains a Federal Bureau of Investigation report, dated 3 December 1971, wherein it shows the applicant was arrested by civilian authorities on 14 April 1971 for assault, convicted, and sentenced to 3 months in confinement.  He was subsequently confined at a correctional facility in Virginia.  

8.  On 25 June 1971, he returned to military control and was assigned in a patient status to the Army hospital, Fort Lee, VA.  On 1 July 1971, he was assigned to the PCF, Fort Belvoir.

9.  On 24 September 1971, he pled guilty to and was convicted by a general court-martial of one specification each of being AWOL from 18 April to 19 May 1969, 22 May 1969 to 27 May 1971, and 28 May to 25 June 1971.  He was sentenced to confinement for 10 months, a forfeiture of $40 pay per month for 10 months, and a bad conduct discharge.  

10.  On 18 November 1971, he was assigned to the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, KS.  

11.  His record contains a USDB Form 198 (Restoration Statement), dated 29 November 1971, wherein the applicant was notified that he was eligible for restoration consideration on 23 January 1972.  He stated he did not desire restoration to duty; when he was AWOL he had gotten married and had two small children.  He felt he would not have enough time to establish a good relationship with his family if he returned to duty.

12.  His record contains two pages of a review of his general court-martial proceedings by the Staff Judge Advocate (SJA), dated 30 December 1971, wherein, in part, the SJA stated:

	a.  The applicant testified that the same factors caused all three periods of AWOL.  He did not understand the Army until he joined and it was hard on him.  He started using drugs while in basic training (BT) before going to Vietnam (emphasis added).  Some of his fellow trainees induced him to start using marijuana and he continued to use it as a form of escape from his environment.  He stated he served in Vietnam for a full year and was involved in combat.  He felt he could not remain in the Army, so he went AWOL as a way to escape drugs.  Before he went AWOL, he did not seek help from anyone in the military for his drug problem.  However, he was bothered by the fact that he was a deserter so he turned to drugs again.  He was very mixed up and confused for awhile.  

	b.  The maximum sentence that could have been imposed was confinement for 2 years and 6 months, a total forfeiture of pay, reduction to private (PV1)/E-1, and a dishonorable discharge.  He was sentenced to confinement for 10 months, a forfeiture of $40 pay per month for 10 months, and a bad conduct discharge.  The sentence had been adjudged, was legal, and in his opinion appropriate.  He recommended the sentence be approved.  

13.  On 30 December 1971, the convening authority approved the sentence.

14.  A DD Form 1478 (Prisoner's Summary Continuation Sheet), dated 11 January 1972, shows the applicant underwent a psychiatric evaluation on 7 January 1972.  The examining psychiatrist, in part, stated:

a.  The applicant's offenses were three periods of AWOL.  He could not adjust to stateside duty after returning from Vietnam.  He was on drugs and wanted to get away from the drug scene in the Army.  He joined the Army when he was 
17 to get away from his family but found he was unable to tolerate it and began using drugs [while in BT].  

	b.  In the period leading up to his confinement, he indicated he had used lysergic acid diethylamide (LSD) and mescaline several hundred times.  He now suffered from subjective memory loss, time distortion, flashbacks, and a sense of hopelessness.  He sought assistance for his drug problem at a Veterans Administration (VA) hospital and when his AWOL status was discovered he was immediately incarcerated.  It was not clear to what extent his current ego disorganization and hopelessness were a result of the excessive use of hallucinogens.  He seemed quite sincere about not resuming drug usage.

	c.  He was diagnosed with a chronic, severe, emotionally unstable personality, manifested by perceptual distortions, poor ego organization, autistic withdrawal, subjective confusion and depression, a history of suicidal ideation, and low self-esteem.  He was cooperative and smiled inappropriately at times.  His affect was somewhat blunted, his thought processes were susceptible to outside structuring, he tended to be vague when not provided with structure, and he had adequate intelligence.  He had shown poor judgment in the past and his judgment was presently impaired by his ego disorganization. 

15.  On 19 April 1972, the U.S. Court of Military Review affirmed the findings of guilty and only so much of the sentence that provided for confinement for 8 months, a forfeiture of $40 pay per month for 8 months, and a bad conduct discharge. 

16.  General Court-Martial Order Number 463, dated 26 April 1972, issued by the USDB, Fort Leavenworth, KS, found the findings of guilty and the sentence had been affirmed, the bad conduct discharge was ordered to be executed.  On 26 April 1972, he was discharged accordingly. 

17.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-1a, with a separation program number of 292 (Court-Martial) and an under other than honorable conditions characterization of service (bad conduct).  He completed 1 year, 8 months, and 26 days of net active service with 1,096 days (3 years and 1 day) of lost time due to being AWOL and/or in confinement.

18.  On 26 January 1976, he was issued a DD Form 215 that added the following statement to item 30 (Remarks) of his DD Form 214:  "DD Form 1953A Clemency Discharge Issued Pursuant to Presidential Proclamation Number 4313."  His available record is void of the DD Form 1953A.

19.  The applicant provides 10 pages announcing the Presidential Clemency Program, and 276 pages of Congressional testimony/records in reference to the clemency program and procedures for its implementation.

20.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

21.  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.  

22.  Army Regulation 635-200, 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.

23.  Army Regulation 635-200, 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.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded to a general discharge because he was young and dealing with mental stress after serving in Vietnam and couldn't handle military life when he returned.

2.  The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations, and the final approved discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 

4.  The applicant was almost 18 years of age when he enlisted, almost 20 years of age when he committed his first offense, and almost 22 years of age when he was convicted by a court-martial.  


5.  Notwithstanding his contention that he went AWOL due to mental stress from his service in Vietnam, the evidence of record shows he testified that he went AWOL as a way to escape drugs, did not seek help for his drug problem while on active duty, and continued to use drugs while he was AWOL.  

6.  In addition, he stated his drug use started before he left for Vietnam and that prior to his court-martial conviction he had used hallucinogenic drugs several hundred times.  In January 1972, when he was diagnosed with a chronic, severe emotionally unstable personality disorder, the examining psychiatrist stated it was unclear as to what extent his issues were the result of his excessive use of hallucinogens.  There is no evidence that shows they were found to be a result of his service in Vietnam.

7.  In January 1976, he was granted a clemency discharge pursuant to Presidential Proclamation Number 4313.  The clemency discharge did not upgrade his bad conduct discharge or entitle him to VA benefits.  It simply restored any Federal or State civil rights that he may have been denied because of his bad conduct discharge. 

8.  At the time of his discharge, he had less than 2 years of net active service and had just over 3 years of lost time due to being AWOL or in confinement.  Based on his record of serious misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to general 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)                                         AR20140006545



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ABCMR Record of Proceedings (cont)                                         AR20140006545



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