PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           7 October 2003
	DOCKET NUMBER:  AR2003084656

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Luis Almodova		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Robert L. Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the results of his court-martial be set aside and that he be restored to the rank and pay grade of Sergeant First Class, E-7, the highest rank he held while on active duty.  To support his application, the applicant submits eight documents as indicated in Item 10 of his DD Form 149, Application for Correction of Military Record.

3.  The applicant states, in effect, that he believes that the punishment for being disrespectful to a senior noncommissioned officer was a harsh decision in light of his total service in the military and considering that he was also a senior noncommissioned officer.  This, he states, is even harsher when considering his recent diagnosis of post-traumatic stress disorder (PTSD) and how this disorder affects one throughout their whole life.

4.  The applicant adds that the punishment was unusual punishment considering his past Army career and that he feels the initial confrontation with the sergeant major and the way he responded was a direct consequence of the PTSD that he now suffers from.

5.  The applicant states that he had come from a previous unit in California in which he had to repay the government money.  This followed him to his duty station in Germany; so, the sergeant major was already aware of his background when the incident occurred in the bachelor enlisted quarters.  PTSD, he adds, can change performance in a military career.  He went from a soldier who was on the US Army Exhibit Team for 1976 to facing a court-martial several years later.  He would not have knowingly jeopardized his career.  PTSD affects social and occupational impairment, such as inappropriate behavior and decreased work efficiency. 

6.  The applicant’s military records show that the applicant enlisted in the Regular Army on 29 May 1962.  He completed basic combat and advanced individual training at Fort Gordon, Georgia.  Upon completion of all required training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

7.  The applicant served through a series of enlistments and on 31 May 1982, he was honorably separated for the purposes of retirement.  On his retirement date, he had 20 years and 2 days active Federal service.

8.  The applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows that he was quickly promoted through the enlisted ranks.  The applicant was advanced from Private, E-1, to Private, E-2, at four months.  He was advanced from Private, E-2, to Private First Class, E-3, after just over six months.  He was promoted to Specialist Four, again with just over six months time in grade and with a total of 1 year, 4 months and 28 days service.

9.  The applicant's DA Form 2-1 also shows that he was promoted to the rank and pay grade, Sergeant, E-5, on 20 March 1965, when he had completed 2 years, 9 months, and 22 days service.

10.  The applicant completed the rigorous Ranger Course that led to his being awarded the Ranger Tab, on 18 April 1966; while he served in the rank of Sergeant, pay grade, E-5.

11.  The applicant was promoted to Staff Sergeant, E-6, on 10 December 1966.  When promoted to this rank and pay grade, he had just over four and a half years Army service.

12.  On 13 November 1980, the applicant was awarded the Air Medal for the period July 1966 to July 1967 for meritorious achievement while participating in sustained aerial flight in support of combat ground forces in Vietnam while he was a Staff Sergeant.

13.  On 15 October 1967, the applicant received nonjudicial punishment under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving a sentinel on his post for one hour after the sentinel was supposed to have been relieved.  The imposed punishment was a forfeiture of $35.00.  The applicant did not appeal the punishment imposed.

14.  The applicant completed the Pathfinder Course at Fort Benning, Georgia, on 3 July 1969, which led to his being awarded the Pathfinder Badge.  This he accomplished while he served in pay grade E-6.

15.  On 16 December 1969, the applicant was presented a letter of appreciation by the Ranger Department, US Army Infantry School, for his outstanding performance over a seven-month period.  As an E-6, he was cited for his devotion to duty, loyalty, and professional competence that had earned him the respect and admiration of all with whom he had served.

16.  On 12 February 1970, the applicant was presented a letter of appreciation by the Professor of Military Science, Auburn University, for his outstanding assistance in making the counter guerrilla company's visit a profitable and memorable one and for conducting training that was challenging and demanding and interesting.  The Director of the Ranger Department of the US Army Infantry School indorsed the letter.

17.  On 27 June 1970, the applicant successfully completed the Jumpmaster Course and was awarded a diploma for this accomplishment while he was serving in pay grade E-6.

18.  On 20 June 1971, orders were published awarding the applicant the Bronze Star Medal for meritorious achievement in connection with ground operations against a hostile force in the Republic of Vietnam.  He was serving in the rank of Staff Sergeant at this time.

19.  On 9 July 1971, orders were published awarding the applicant the Army Commendation Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam.  He was serving in the rank of Staff Sergeant.

20.  The applicant was awarded the Good Conduct Medal (2nd Award) for the period 29 May 1965 through 28 May 1968 while he was serving in the rank and pay grade, Staff Sergeant, E-6.  The applicant was awarded a total of six awards of the Good Conduct Medal throughout his 20-year career.

21.  The applicant was presented a letter of commendation on 26 February 1972 on his selection as the leadership award winner in his noncommissioned officer academy class.  He was designated as the outstanding leader of a class of 81 students.

22.  On 2 March 1972, the applicant was presented a letter of commendation for his outstanding performance of duties as rifle platoon sergeant for the period 5 September 1971 through 15 January 1972.  During this period, the applicant was cited for his having demonstrated the highest level of professional abilities as evidenced by his being recognized by the 173rd Airborne Brigade Commanding General as the best in the brigade.

23.  On 18 April 1972, the applicant was awarded the Master Parachutist Badge.  When he received this award, he was serving in the rank of Staff Sergeant.

24.  The applicant was promoted to the rank and pay grade, Sergeant First Class, on 3 April 1974, with an effective date of 1 May 1974.

25.  While on active duty, the applicant served in the demanding position of Platoon Sergeant with units of the 101st Airborne Division at Fort Campbell, Kentucky, and the 3rd Armored Division, in Germany.  He served in the prestigious and high visibility position of Exhibit Team Chief with the US Army Recruiting Command from 1 March 1976 until 31 August 1978 and on 1 September 1978 he was selected for duty as an Army Recruiter.

26.  The applicant was honorably discharged in the rank and grade, Sergeant First Class, E-7, on 22 December 1975, for the purpose of immediate reenlistment on 23 December 1975.  On the date of this reenlistment, the applicant had served in this rank and pay grade for a period of 1 year, 8 months, and 20 days.
27.  While serving on the enlistment entered into on 23 December 1975, the applicant received a special court-martial on 16 July 1979.  He was found guilty of making a false and fraudulent claim against the government in the amount of $871.36 for dislocation allowance and dependent travel; making a false and fraudulent claim against the government in the amount of $1,729.00 for private property alleged to have been lost or damaged in the military service; signing, with the intent to deceive, a statement of certification in support of a request for Government leased housing, which statement was false, in that the individuals listed on the statement of certification were not in fact his legal dependents; and signing with intent to deceive, an official document, which document was false in that property requested to be shipped was not his property.  The sentence imposed was that he was to be reduced to the pay grade of E-6.  The sentence was adjudged on 16 July 1979.  On 11 October 1979, the convening authority approved the sentence as imposed but suspended the execution thereof for six month unless the suspension was sooner vacated.

28.  On the convening date of his court-martial, the applicant had 5 years, 3 months, and 14 days time in pay grade, E-7.

29.  While serving on the enlistment entered into on 23 December 1975, the applicant received a second special court-martial on 9 June 1981.  Initially, on 20 March 1981, consideration was given to addressing the allegations through nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The DA Form 2627, Record of Proceedings under Article 15 of the UCMJ, had been prepared for this action.  

30.  The applicant objected to the settling of the allegations through imposition of nonjudicial punishment.  Because of his objections, on 31 March 1981, the convening authority, a lieutenant colonel, recommended trial by summary court martial.  On 22 April 1981, the applicant appeared before a summary court officer and because of his objection to trial by summary court martial, the convening authority recommended trial by a special court martial on 23 April 1981.

31.  The applicant was tried by special court martial and was found guilty of one specification of willfully disobeying an order from his superior noncommissioned officer on 17 December 1980; two specifications of being disrespectful in language towards his superior noncommissioned officer on 16 December 1980; two specifications of being disrespectful in deportment towards his superior noncommissioned officer on 16 December 1980; and of one specification of assaulting his superior noncommissioned officer on 16 December 1980.

32.  The sentence imposed by the special court martial was a reduction to the pay grade, E-3.  The sentence was adjudged on 9 June 1981.  On 27 July 1981, the convening authority approved the sentence as imposed but so much of the sentence in excess of reduction to the pay grade E-4 was to be suspended until 26 January 1982, at which time, unless the suspension of the reduction to the grade E-3 was vacated, in which event, the accused, at the time, was to be reduced to the grade of E-3.

33.  On 9 November 1981, the reduction to the pay grade E-3, suspended until 24 January 1982, was set aside to enable the applicant to retire in the rank of Specialist Four.

34.  On 17 November 1981, the applicant's enlistment of 22 December 1975 was voluntarily extended for a period of 5 months and 8 days to enable the applicant to meet the retirement eligibility point of 20 years service.

35.  The applicant was awarded the Good Conduct Medal (6th Award) for the period of service 29 May 1977 through 28 May 1980.  Conviction by the special court martial on 16 July 1979 was not held against him by his unit commander to disqualify him from receiving this award.

36.  The applicant had completed two tours of duty in the Republic of Vietnam.  He was promoted to the rank of staff sergeant while on his first tour which extended from 16 July 1966 through 15 July 1967.  On his return to the Republic of Vietnam, he had already served as a staff sergeant for 3 years, 10 months, and 22 days.

37.  His awards and decorations included the Bronze Star Medal, the Army Commendation Medal, the Good Conduct Medal (six awards), the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Vietnam Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (with numeral 2), the Noncommissioned Officer Professional Development Ribbon (with numeral 3), the Republic of Vietnam Campaign Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, the Combat Infantryman Badge, the Pathfinder Badge, the Parachutist Badge, the Ranger Tab, the Air Assault Badge, and five overseas service bars.  The majority of these were earned while he served in the ranks of Staff Sergeant and Sergeant First Class.  In addition to these, the applicant was recognized by numerous individuals in a wide variety of positions of command and leadership through issuance of certificates of achievement, letters of commendation, and letters of appreciation.

38.  The Good Conduct Medal (GCMDL) is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.

39.  On 15 May 1982, the applicant applied to the Board and asked for the restoration of his rank of Sergeant First Class. In his application, the applicant contended that he was a professional soldier and had an exemplary record of service.  He explained that he had been offered an Article 15 by the Commander, but requested a court-martial hoping to prove his innocence.  He was shocked when he was found guilty and was even more shocked by the punishment.  He humbly requested that the Board review his case and allow him to retire from active duty with his rank of Sergeant First Class instead of pay grade, E-4.

40.  The applicant's case was considered on 23 February 1983 (Docket Number AC82-06850), and after consideration of all the evidence, allegations and information presented by the applicant in relation to the evidence concluded that the applicant was not entitled to have his pay grade of E-7 restored.  The applicant was notified of the denial on 25 February 1983.

41.  Title 10, United States Code, Section 3964 provides that warrant officers of the Army, enlisted members of the Regular Army, and reserve enlisted members who at the time of retirement are serving on active duty (or in the case of members of the National Guard on full-time National Guard duty), may be advanced on the retired list to the highest rank satisfactorily held at the completion of 30 years active and retired service.  The Secretary of the Army must consider the service satisfactory.

42.  On 11 January 1992, a request for a determination of the applicant's eligibility for advancement to the rank and pay grade of Sergeant First Class, 
E-7 was submitted.  On 14 August 1992, an Army Ad Hoc Review Board, acting for the Secretary of the Army, determined (COPY ATTACHED) that the highest rank the applicant satisfactorily held for the purpose of computation of retired pay was pay grade E-4.  This determination took into account one infraction for which he received nonjudicial punishment while he served in the pay grade E-5 and two court-martial convictions while he served in pay grade E-7.

43.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board, which would disturb the finality of a court-martial conviction.  The Board is empowered to address the sentence and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the sentence and/or the characterization of service if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the sentence imposed.

CONCLUSIONS:

1.  The evidence of record shows that from the date of his enlistment, the applicant was rapidly promoted through the ranks.  He is a decorated veteran 

who served his country well in combat and in peacetime.  He possessed and demonstrated leadership abilities and skills that helped young soldiers to enable them to survive on the modern battlefield.  Rapid promotions to and through the enlisted ranks is a by-product of outstanding and dedicated service.

2.  The applicant’s military records show that he had a highly satisfactory record of service until 9 June 1981 when he was subjected to a special court martial.  On this date, he had 5 years, 3 months, and 14 days time in pay grade E-7.

3.  As a result of this special court martial, the applicant was reduced to the pay grade E-3 but with only so much of the sentence that provided for his reduction to E-4 ordered executed.  The applicant was given an extension of service in order for him to attain retirement eligibility, and he was retired in the pay grade, E-4.

4.  The applicant appealed to this Board to have the rank that was taken as a result of court martial sentence restored.  His appeal was denied.

5.  The applicant's records were considered for his advancement on the retired list to the highest rank and pay grade held, Sergeant First Class, E-7, by an ad hoc board but his advancement on the retired list was denied.

6.  There are a wide variety of documents in the applicant's service personnel records, which indicate that the applicant served satisfactorily in the rank of Staff Sergeant, pay grade E-6, and in the rank of Sergeant, pay grade E-5, which merited consideration of restoration to a higher rank and pay grade than Specialist, E-4.  Considering the duty positions and the responsibility that go with the duties normally performed in these pay grades, it appears that earlier boards which considered his appeals for the restoration of his pay grade focused on the larger category of enlisted soldier and noncommissioned officer as opposed to a particular rank or pay grade in their determination processes.

7.  There were no recorded violations of the UCMJ while the applicant served in the rank and pay grade of Staff Sergeant, E-6.

8.  There was only a minor violation of the UCMJ that happened while the applicant was in the rank and pay grade, Sergeant, E-5.  The applicant accepted nonjudicial punishment and did not appeal the punishment imposed, an indication of acceptance of responsibility.  Accomplishments at this pay grade far overshadow this minor breach in his performance in this rank and pay grade.

9.  There was reason for the applicant to be denied the Good Conduct Medal after he had been court-martialed; however, his command chose not to and in so 

doing characterized the applicant's service as satisfactory and on a par with other soldiers who received Good Conduct Medals and who had not been subjected to court-martial.  The award is made to individuals who distinguish themselves by their exemplary conduct, efficiency, and fidelity during a qualifying period of active duty enlisted service.

10.  There is no evidence, and the applicant had not claimed in past actions submitted to this Board, that he suffered from the effects of PTSD.  The applicant was not diagnosed, as having PTSD until 1999 even though personnel involved in treating and counseling him now believe that his PTSD stemmed from his military service in Vietnam and after.

11.  The applicant's violation of the Uniformed Code of Military Justice diminished the level and quality of his service at the rank and pay grade of Sergeant First Class; however, the applicant served satisfactorily in the rank of Staff Sergeant, pay grade, E-6, and in the rank of Sergeant, pay grade, E-5.

12.  There is clear evidence of misconduct on the applicant's part, and command felt it had an interest in ensuring good order and discipline.  It is obvious that command felt this could be met through imposition of field grade nonjudicial punishment.  It was the applicant who decline field grade nonjudicial punishment, a summary court-martial and subjected himself to the adjudication of the charges through a special court-martial.

13.  Had the applicant accepted the nonjudicial punishment, he could not have been reduced and it is reasonable to assume that he would have retired in the rank and pay grade of Sergeant First Class, E-7.  Had the applicant accepted being tried by summary court-martial and had he been found guilty, he could not have been reduced more than one pay grade.  By exercising his rights to demand trial by special court-martial, the applicant exposed himself to the possibility of greater punishment.

14.  In view of the foregoing, the applicant's records should be corrected as recommended below. 

RECOMMENDATION:

1.  That all Department of the Army records related to this case be corrected by advancing the applicant to the rank and pay grade, Staff Sergeant, pay grade,
E-6, with the effective date to be the date that these proceedings are approved.

2.  That so much of the application as is in excess of the foregoing, that the result of the special court-martial that convicted him on 16 July 1979 be set aside, be denied.

BOARD VOTE:  

___fe ___  ___slp___  ___rld___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Fred N. Eichorn______
		        CHAIRPERSON

INDEX

CASE ID	AR2003084656	
SUFFIX		
RECON		
DATE BOARDED	2003/10/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT IN PART	
REVIEW AUTHORITY		
ISSUES         1.  302	129.0000	
2.  306	129.0400	
3.		
4.		
5.		
6.