Bad Paper Discharge

[Flyfishingnut]

I'm presently working with a Vietman Veteran, who has a "under conditions other than honorable".  He has been receiving medical care from a VA Healthcare Facility.  When we tried to apply for Disability Benefits, he was denied.  During our search, we discovered that he has receive a "Pardon", from President Ford.  However, the VA, is refusing to honor this Pardon, and is refusing any Disability Rating.  We have appealed and they want him to come to WA., for a furture appeal.  We applied and asked for a teleconference appeal, and was granted.  We are waiting for a date/time.

Just wondering if anyone has any exprience with this sort of appeal, and any suggestions.

[stinger]

1 hour ago, Flyfishingnut said:

I'm presently working with a Vietman Veteran, who has a "under conditions other than honorable".  He has been receiving medical care from a VA Healthcare Facility.  When we tried to apply for Disability Benefits, he was denied.  During our search, we discovered that he has receive a "Pardon", from President Ford.  However, the VA, is refusing to honor this Pardon, and is refusing any Disability Rating.  We have appealed and they want him to come to WA., for a furture appeal.  We applied and asked for a teleconference appeal, and was granted.  We are waiting for a date/time.

Just wondering if anyone has any exprience with this sort of appeal, and any suggestions.

I may be in the minority, but need to know what the BCD was for. This helps me reach a better informed decision.

[Flyfishingnut]

The paper was for AWOL.  Exact number unsure.  The Veteran, did have time served in Nam, but his AWOL, was stateside.  Cumlitive was just north of 180 days.  His awards include NDSM, and Viet Service with 2 Bronse Stars.

Any advice would be greatly appreciated.

Thanks

[Berta]

If you google 'Bad paper veterans" a lot will pop up such as:

https://www.militarytimes.com/veterans/2018/01/26/dod-va-team-up-on-new-tool-to-help-with-bad-paper-upgrade-applications/

If you google Bad paper veterans hadit.com more will pop up as we have discussed thia situation many times here:

 

[Berta]

This also might help

President Ford issued a clemency program that ran from Sept 1974 to March 1975 that affected draft dodgers.

 

"The Pentagon has said there are 93,250 deserters, of Which 10,115 are fugitives and 83,135 were discharged from the military service with undesirable, bad conduct or dishonorable discharges. Of the total, 19,144 took part in President Ford's clemency program.

That leaves 74,100 deserters uncovered either by Mr. Ford's clemency or Mr. Carter's pardon. About 4,550 deserters are still fugitives, but about 69,550 are back in civilian life with discharges under other than honorable conditions, which has made it hard for them to get jobs and ineligible for veterans’ benefits.”

https://www.nytimes.com/1977/03/11/archives/issue-and-debate-the-dispute-over-amnesty-for-deserters-a-legacy-of.html

However this fairly recent  BVA case might help:

This recent BVA decision mentions the pardon from President Ford.

"CONCLUSION OF LAW The character of the appellant's service does not constitute a bar to VA benefits. 38 U.S.C.A. §§ 101, 5107, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.12 (2014)."

https://www.va.gov/vetapp15/files1/1500467.txt

 

Did the VA make  a Character of Discharge decision which he is on appeal for?

If so would he permit you to scan and attach the decision as to why they denied and what Evidence they used?

(Cover his C file, name, etc prior to scanning it)

A personal note-have you see the veterans SMRs and 201 personnel file?

Favorable Character of Discharge decisions do not happen often.

Sometimes there are many factors for AWOL, and as the BVA case above shows the veteran had a sort of 'buddy statement '(March 1969 "Commander's Inquiry of AWOL Soldier).

I have dealt with a few cases like this -one was easy- a Period of Honorable Service followed by an OTH , for a separate period of  and the vet also had a pardon from President Carter.They were granted an HD  for both periods of service.

Easy- the others , at some point, had no basis nor any evidence that could overcome their bad paper.

These were DD discharged vets who had done nothing or would not take the steps via BCMR or anything I advised to get their records corrected. I guess they expected I knew of some bad paper miracle.

In another case, a widow here (on the older hadit board)contacted me by email ( My email is no longer available here) and she told me her story- a very long rendition- and I asked to see the veteran's DD214 and death certificate.Her DIC claim had been denied. She couldn't attach them in the email but did attach a VA decision.

He had died in prison , incarcerated because he had stolen money from the Military. No DIC possible there.

My point is- you need ALL the facts on this situation, and I assume you seen the veteran's DD 214 and anything he has received from the VA.

It is possible to get his discharge changed but it will not be easy if VA has already denied the Character of Discharge. I have even seen the VA determine a OTH was in fact a Dishonorable discharge. for VA purposes..

There are other decisions at the BVA web site regarding President Ford clemency pardons.

This vet was covered by the pardon but BVA found:

"2.  The actions that led to the appellant's discharge from service, including multiple periods of absence without leave (AWOL), constituted willful and persistent misconduct."

"ORDER The character of the appellant's discharge from service is a bar to entitlement to VA benefits and the appeal is denied."

https://www.va.gov/vetapp17/files2/1707308.txt

If you go t the BVA web site, and click on their search feture and put President Ford Pardon in the search feature other decisions will pop up.

The denied claims will reveal as much info on this issue ,as the awarded claims will.

 

 

 

Edited March 26, 2018 by Berta

[CaravanDan]

There are historical precedents for the executive use of the clemency power to correct perceived wartime injustices. On September 16, 1974, President Ford issued a proclamation pardoning individuals who had evaded the draft for the Vietnam War in violation of the Military Selective Service Act or who had deserted their troops in violation of the Uniform Code of Military Justice between August 1964 and March 1973.24 In order to receive pardons under the proclamation, the “draft evaders and military deserters” were required to present themselves to a U.S. Attorney before January 31, 1975, execute agreements acknowledging allegiance to the United States, and engage in two years of alternate service under the Director of Selective Service, unless mitigating circumstances counseled in favor of a shorter period of alternate service.25 The proclamation stated that members of the Armed Forces who applied for pardons would receive undesirable discharges until they completed their alternate service, at which point they were eligible to receive a “clemency discharge” in lieu of an undesirable or OTH discharge.26 The proclamation established a Presidential Clemency Board by Executive Order to review the records of draft evaders and individuals who had received punitive or undesirable discharges.27 By the end of President’s Ford’s tenure, approximately 19,000 veterans had applied for clemency.28
 
The effects of President Ford’s clemency program were limited, as the proclamation expressly granted clemency discharges rather than honorable discharges and stated that clemency discharges “shall not bestow entitlement to benefits administered by the Veterans Administration.”29 To address the program’s limited impact, President Ford issued a memorandum on January 19, 1977, that directed the Presidential Clemency Board to grant honorable discharges to veterans “who were wounded in combat or who received decorations for valor in combat in Vietnam and subsequently received [OTH] discharges,” absent a “compelling reason to the contrary in any case.”

[CaravanDan]

A person discharged under conditions other than honorable on the basis of an AWOL period of at least 180 days is barred from receipt of VA benefits "unless such person demonstrates to the satisfaction of the Secretary that there are compelling circumstances to warrant such prolonged unauthorized absence. " 38 U.S.C.A. § 5303(a) ; 38 C.F.R. § 3.12(c)(6).

Under 38 C.F.R. § 3.12(c)(6)(i-iii), the following factors are considered in determining whether there are "compelling circumstances" to warrant the prolonged unauthorized absence: (i) Length and character of service exclusive of the period of prolonged AWOL, and (ii) Reasons for going AWOL.

Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious, and of benefit to the Nation.  38 C.F.R. § 3.12(c)(6)(i).

Reasons for going AWOL which are entitled to be given consideration when offered by the claimant include family emergencies or obligations. The reasons for going AWOL are evaluated in terms of the person's age, cultural background, educational level, and judgmental maturity.  Consideration is given to how the situation appeared to the person and not how the adjudicator might have reacted.  Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began. 38 C.F.R. § 3.12(c)(6)(ii).