IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150008017 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ____X____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150008017 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * awarding the applicant the Purple Heart for wounds received in action on 20 March 1968 in Vietnam * adding to his DD Form 214 for the period ending 10 April 1970: * Purple Heart * Vietnam Service Medal with one bronze service stars * Republic of Vietnam Campaign Medal with 1960 Device * Republic of Vietnam Gallantry Cross with Palm Unit Citation 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his under other than honorable conditions discharge. _____________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. IN THE CASE OF: BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150008017 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. He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the Purple Heart. 3. The applicant states, in effect: * he suffered from post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI); these were not taken into consideration in his discharge processing * during his court-martial and subsequent discharge, his superiors did not take into consideration his mental status * he believes he was unjustly tried and convicted because of fear for his life after nearly dying in combat * all actions were used covertly or overtly against him and included racial statements in an effort to coerce him to return to combat * the improper medical and mental evaluations combined resulted in mistreatment by his superiors; no one cared about him; he felt trapped and abandoned * his DD Form 214 does not show award of the Purple Heart for wounds received in combat; or that he earned this award 4. The applicant provides: * DD Form 214 * Power of Attorney * DA Form 20 (Enlisted Qualification Record) * email Statements of support COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, an upgrade of the applicant's under other than honorable conditions discharge and correction of his DD Form 214 to show award of the Purple Heart. 2. Counsel states: a. First, he is legally appointed by the applicant in support of his request for an upgrade of his under other than honorable conditions discharge. He also requests to be awarded the Purple Heart for wounds received in combat. His DA Form 20 shows he sustained fragment wounds to the left arm and left leg on 20 March 1968. He was never issued the Purple Heart, which he feels he rightly deserves. b. Second, during the intake interview and over the last 3 years of follow-up visits with the applicant and his wife, even now he repeatedly addresses the circumstances surrounding the maltreatment and racial discrimination used against him by his superiors both in the combat zone and afterward while at Fort Polk, LA. Although hampered by his severe medical conditions, he vividly expresses his point of view, which is viewable in his application to the Board. c. Third, to aid in the chronicle of events, they have included copies of his active duty service records, special court-martial, and Article 15. d. The applicant has suffered two heart attacks and several strokes. The 1974 proclamation of President Gerald Ford excused all draft dodgers and offered amnesty to armed forces deserters. For over 40 years, he received bad advice on how to go about upgrading his discharge. Often he experienced hopelessness, disappointments, and a loss of faith in the veterans support agencies such as the Department of Veterans Affairs (VA) and other veterans service agencies, that boldly advertise help for the disadvantaged American citizen. e. He volunteered for Vietnam, though both educationally and economically below the poverty line, but has survived to ask the Board for a positive ruling on his behalf. 3. Counsel does not provide any additional evidence. 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, and 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 9 November 1965. He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. He served in Germany from on or about 9 April 1966 to on or about 31 December 1967. He was assigned to the 1st Squadron, 14th Armored Cavalry Regiment. 4. On 20 May 1967, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to obey a lawful order. His punishment consisted of a reduction to E-3, a forfeiture of pay, and extra duty and restriction. 5. His exact dates of service in Vietnam cannot be determined. His DA Form 20 shows in item 38 (Record of Assignments): * 31 December 1967, casual, departed Germany enroute to continental United States (CONUS) * 20 March 1968, patient, A Troop, 1st Squadron, 1st Cavalry, U.S. Army Pacific (USARPAC) * 20 March 1968, patient, 106th General Hospital, USARPAC * 6 April 1968, enroute to CONUS 6. Item 40 (Wounds) of his DA Form 20 shows the entry "Burns and Fragment Wounds of left arm & left leg, 20 March 1968" and item 41 (Awards and Decorations) lists the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) 7. There is nothing in several typical sources that shows he was injured or wounded as a result of hostile action: * his medical records are not available for review with this case * there are no orders in his records for award of the Purple Heart * his records do not contain a Western Union telegram informing his next of kin of an injury/wound or any Army Adjutant General correspondence regarding an injury * his name is not shown on the Vietnam casualty roster * a review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) maintained by the U.S. Army Human Resources Command, which is an index of general orders issued during the Vietnam era between 1965 and 1973, failed to reveal any orders for the Purple Heart pertaining to him 8. His DA Form 20 also shows he departed the 106th General Hospital on 6 April 1968, arriving at Fort Sam Houston, TX, on 7 April 1968 and ultimately at 2nd Battalion, 67th Armor, 2nd Armored Division, Fort Hood, TX, on 24 April 1968. 9. On 16 October 1968, he departed his unit in an absent without leave (AWOL) status and on 15 November 1968, he was dropped from the rolls as a deserter. He returned to military control on 17 December 1968, presumably at Fort Polk, LA. 10. On 6 January 1969, he was convicted by a special court-martial of one specification of AWOL from on or about 16 October 1968 to on or about 17 December 1968. The court sentenced him to confinement at hard labor for 6 months and forfeiture of $97 pay per month for 6 months. The convening authority approved the sentence on the same date. 11. On 15 January 1969, he departed Fort Polk, LA, enroute to the U.S. Army Training Center, Infantry, Fort Benning, GA. He was assigned to the Replacement Detachment. 12. On 6 February 1969, he was reported in an AWOL status. He ultimately returned to military control on 15 September 1969. 13. On 9 October 1969, he was convicted by a special court-martial of one specification of AWOL from on or about 6 February 1969 to on or about 15 September 1969. The court sentenced him to confinement at hard labor for 6 months and forfeiture of $80 pay per month for 6 months. The convening authority approved the sentence on 11 October 1969. 14. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his records contain a DD Form 214 showing he was discharged on 10 April 1970 under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to unfitness with his service characterized as under other than honorable conditions. This form further confirms: * he was separated on temporary records and his affidavit * he completed 3 years and 13 days of creditable active military service * he had 504 days of lost time (broken down by date) * he was assigned separation code designator 28B (unfitness – frequent involvement in incidents of a discreditable nature with civil/military authorities) * he was awarded or authorized the National Defense Service Medal 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. He provides: a. A statement from his spouse, dated 5 March 2012. She states she has been with the applicant since 1973 and described her marriage to the applicant as a challenge. He does not tell her about his time in the service. She feels he does not want to talk about it because he was wounded. b. A statement from a pastor, dated 16 January 2012. He states that the applicant has been a faithful member of the church since August 2003. He supports the church with volunteer work and other functions. c. An email, dated 28 July 2014, describing the applicant medical maladies including, diabetes, heart attacks, stroke, and associative PTSD. d. A self-authored statement describing his childhood and upbringing, together with childhood and family challenges he endured. 17. On 22 March 2016, a staff member of the Army Review Boards Agency corresponded with the applicant and requested he provide a copy of the medical documents that support his issue of PTSD and/or VA records. The applicant did not respond. 18. The Board requested the Office of The Surgeon General (OTSG) to review his records in an effort to determine there was a relationship between his claimed PTSD and his misconduct. The OTSG official stated: a. The applicant entered active duty on 9 November 1965 and was discharged on 10 April 1970 with an under other than honorable conditions characterization in accordance with AR 635-212. He requested that the Board upgrade his discharge to general, under honorable conditions, due to PTSD/TBI. The OTSG was asked to determine if applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time. b. On 22 March 2016, the Board requested that he provide medical documents to support his claim of PTSD. No response was provided. Therefore, OTSG medical officials are unable to determine if his military separation was related to PTSD or any BH condition. 19. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 2. AR 635-200 sets forth the basic policy 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. 3. AR 600-8-22 (Military Awards) states: a. The Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. Also eligible for this award are individuals who qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and served for less than six months of service but: * were wounded as a result of hostile action * were captured by hostile forces but later escaped or were rescued or released * were killed in action or otherwise in line of duty c. The Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973. Qualifying service included attachment to or assignment for one or more days with an organization participating in or directly supporting military operations. Qualifying service also included temporary duty for 30 consecutive days or 60 nonconsecutive days in Vietnam or contiguous areas, except that the time limit may be waived for, personnel participating in actual combat operations. d. A bronze service star is worn on the appropriate service ribbon, to include the Vietnam Service Medal, for each credited campaign. A silver service star is authorized in lieu of five bronze service stars. 4. AR 600-200 (Enlisted Personnel Management), chapter 9 of the version in effect at the time, stated a brief description of wounds or injuries (including injury from gas) requiring medical treatment received through hostile or enemy action, including those requiring hospitalization would be entered in item 40 (wounds) of the DA Form 20. This regulation further stated that the date the wound or injury occurred would also be placed in item 40. 5. Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to: * Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 * Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973 DISCUSSION: 1. With respect to the character of service: a. The applicant's record is void of the facts and circumstances that led to his discharge. However, his record contains a DD Form 214 showing he was discharged on 10 April 1970 under the provisions of AR 635-212 due to unfitness. b. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. c. There are no BH records from the time of his service and he did not provide any to support his contention that PTSD and/or TBI were mitigating factors to excuse or explain his misconduct. d. The ABCMR does not grant requests for discharge upgrades solely for making an applicant eligible for veteran's benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veteran’s benefits is not within the purview of the ABCMR. Any questions regarding eligibility for healthcare and other benefits should be addressed to VA. e. The applicant's service was marred with misconduct from beginning to end and included one instance of NJP, a history of extended AWOL/desertion, and two convictions by special courts-martial. His discharge appears to be appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 2. With respect to the Purple Heart: a. The applicant's service and exact dates of service in Vietnam are unknown. The assignment entries on his DA Form 20 confirm he served with the 1st Squadron, 1st Cavalry in the USARPAC from at least March 1968 to April 1968. Despite this period being less than 6 months, his DA Form 20 listed award of the Republic of Vietnam Campaign Medal with Device (1960), as an authorized award. This award normally requires 6 months in Vietnam but it may also be awarded to those who served for less than six months of service but were wounded as a result of hostile action. b. His DA Form 20 lists the entry "Burns and Fragment Wounds of left arm and left leg, 20 March 1968." Item 40 of the DA Form 20 was used to list a brief description of wounds or injuries requiring medical treatment received through hostile or enemy action, including those requiring hospitalization, together with the date the wound or injury occurred. c. There is sufficient evidence to support awarding the applicant the Purple Heart for wounds received in action on 20 March 1968, in this case. 3. His DA Form 20 lists the Republic of Vietnam Campaign Medal with Device (1960) as an authorized award. It is not listed on his DD Form 214. 4. His DA Form 20 also lists the Vietnam Service Medal as an authorized award. It is not listed on his DD Form 214. Additionally, because his exact dates of service in Vietnam are known, his campaign participation credit cannot be determined. However, it is reasonable to presume he participated in at least one campaign. This makes him eligible for a bronze service star to be affixed to his Vietnam Service Medal. 5. All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation. This unit award is not listed on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008017 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008017 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2