BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017899 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017899 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 showing he received an honorable discharge and issuing him an Honorable Discharge Certificate. ______________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. BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017899 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 discharge from under honorable conditions to honorable. 2. The applicant states “see attached petition,” and defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant’s discharge to honorable. 2. Counsel states: a. The applicant met all criteria for an honorable discharge. He had never been accused of misconduct and he received commendable evaluations, but to his surprise and dismay, he was given a general discharge under honorable conditions. Under the clear criteria of the applicable Army Regulation (AR), he should have received an honorable discharge, and he petitions this Board for a correction. b. The applicant has long suspected that he was denied an honorable discharge because of his political views, which he did not disguise, but they never interfered with his work, as his superior officers attest. His views were permissible expressions of speech that did not constitute misconduct or other justification for denying him an honorable discharge. His commendable medical work since his discharge has included valuable contributions to the health and safety of military combat personnel. c. According to the Chief of the Department of Clinics & CHC Services, COL Samuel J____, the applicant demonstrated excellent ability as a physician. The Assistant Chief of Clinics LTC Richard A____ also commended his performance. The applicant performed his duties in an outstanding manner, and on several occasions has been instrumental in saving lives. LTC A____ adds, the applicant has more than filled his share of extra-duty periods. In the judgment of his peers, the applicant has done an excellent professional and administrative job during his tour of duty. d. Another superior, MAJ Jose G____-P____, who observed the applicant throughout his time at Brooke General Hospital, evaluated him as "an excellent physician" and "an intelligent, conscientious, dedicated individual." A fourth officer, CPT G____ R____, who worked alongside the applicant for seven months at the hospital, described the applicant as an "honest, sincere man with the finest professional attributes." At no time during his service was the applicant the subject of even the most minimal charge of misbehavior or improper performance of duty. e. After the applicant had served fourteen months at Ft. Sam Houston, TX, he was approached by Major General (MG) Kenneth O____, Brooke Army Medical Center (BAMC) Commander, who suggested he avail himself of an opportunity to be released from any further military obligation, by submitting his resignation. Although the reason was not stated, the applicant believes he was approached by MG O___ because he had (while off duty, off post and out of uniform), expressed his opposition to the Vietnam War, and had petitioned unsuccessfully for conscientious objector status. f. Despite those views, several of his superiors and colleagues, including his two direct superiors in the best positions to know, made it clear, the applicant had always ensured to limit his political expression to permissible times and places. COL J____, the Chief of Clinics, who had rated the applicant's performance as "excellent," wrote that "Dr. K____ did not allow his feelings against the military service to interfere with his professional judgment and patient relationship[s]." LTC A____, the Assistant Chief of Clinics, who had also rated the applicant's performance as "excellent," and praised his "courage, training as a physician, and high sense of social need," emphasized that "This young officer has not let his active extra-curricular life influence his duty." MAJ G____-P____ agreed that "His personal and political activities did not interfere with his patients' care." g. It appears now that the approach to the applicant regarding a separation seven months before his anticipated release date was initiated by the command in violation of Army policy. According to a memorandum prepared for the Deputy Chief of Staff for Personnel around the time the applicant was approached to submit his resignation, "Recent actions indicate that some commanders are advising officers who express dissident views to submit requests for resignations even though those officers are not otherwise eligible for resignation consideration. ...As a generalization, officers involved in these type actions are not normally subject to disciplinary action nor do they conduct themselves in a duty environment in a manner that would justify initiation of elimination action." Despite this memorandum, the applicant was encouraged to submit a request to resign on the understanding that he would receive an honorable discharge. To his shock and distress, he was instead issued a general discharge. h. The standards for issuance of an honorable discharge in effect at the time, in AR 635- 5, provided that, with certain specified exceptions, "an officer normally will be given a honorable discharge." An exception is provided for circumstances involving serious misconduct. The applicant’s record satisfies the standards for an honorable discharge, by a wide margin. He was never even accused of, and certainly not disciplined for any sort of misconduct, no less serious misconduct. i. The only less than wholly positive report of the applicant’s performance, which makes no charge of misconduct, is found in a report of MG O____, who, in recommending approval of the applicant’s resignation, was critical of his application for conscientious objector status, and his political expressions in opposition to the Vietnam War, which he characterized as not demonstrating the characteristics of a positive attitude and decorum. As previously noted, this false accusation of substandard performance is not only unsupported by the evidence, it is directly contradicted by the specific statements of the applicant’s superiors that, the applicant did not allow his feelings against the military to interfere with his professional judgment and patient relationships. His personal and political activities did not interfere with his patients' care. Those evaluations, by the people in the best position to know, express the real facts. j. MG O____ admitted in his endorsement to the applicant’s resignation request that there had been no recent conduct of a reportable nature on the part of the resigning officer. In fact, there had been no misconduct of a reportable nature at any time, not just recently. In recommending that Dr. K____ receive a General Discharge, MG O____ relied solely, and wrongly, on paragraph 7b(2)(a) of AR 635-5, the paragraph that provided for the issuance of a General Discharge Certificate in cases of circumstances involving serious misconduct. As there was admittedly no serious misconduct, not even (as MG O____ concedes) any reportable misconduct or misconduct of any sort, the issuance of a General Discharge was not only unwarranted, it was contrary to AR’s. k. Counsel states the applicant’s activities in the years since his discharge demonstrate his loyal contributions to this country generally and its military personnel specifically. Not only has he pursued a distinguished career in medicine, but he has long been engaged in treatment of military personnel. He has served for eight years as Section Chief in General and Vascular Surgery and Director of the Surgical Intensive Care Unit at the Veteran's Administration (VA) Hospital in the Bronx, New York. l. Counsel also points out that most notably, the applicant was a team leader in developing HEXTEND, which has become the Army's primary combat fluid resuscitation regimen by keeping the bleeding wounded alive until they can receive transfusions or undergo surgery. The attached excerpt from an article in EMSWorld.com, entitled "Military Trauma Care Advances," describes the development of HEXTEND and other compounds as nothing short of incredible for the saving of lives by military medics in Iraq and Afghanistan. It has been credited with saving thousands of lives on the battlefields of Iraq and Afghanistan. m. Counsel concludes that it is appropriate for this Board to take into account such post-service activities that have so benefitted military personnel. The applicant qualified for, and should have received, an Honorable Discharge. His service record rates squarely within the applicable provisions for an Honorable Discharge, and does not fall within the lower criteria for a General Discharge. His expression of political views, which did not affect his performance of duty, does not disqualify him from receiving an Honorable Discharge. His service in the Medical Corps was rated highly by four superiors, and he contributed to saving lives. In the years since his discharge, he has continued to serve the civilian and military community, and has been in the forefront of developing a product that saves the lives of battlefield casualties. Under all the circumstances, it was an injustice for him to receive a General Discharge. He should receive an Honorable Discharge to rectify that injustice. 3. Counsel provides copies of: * a petition for correction of records, dated 21 October 2015 * letter of support, dated 26 June 1971 * disposition form, dated 7 July 1971 * endorsement of unqualified resignation (MG O___), dated 10 November 1971 * letter of support from (MAJ G___-P____), dated 14 December 1971 * letter of support from (LTC A____), dated 14 December 1971 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective date 14 December 1971 * memorandum, dated 17 January 1972 * EMSworld.com article, dated 7 October 2015 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 was called to active duty on 21 July 1970, after he was commissioned in the Medical Corps of the United States Army Reserve (USAR). He served three months in training as an anesthesiologist. 3. In October 1970, he was transferred to Fort Sam Houston, TX, where he completed the U.S. Army Medical Officer course. He was further assigned to duty in the emergency room of Brooke General Hospital, as a physician in charge of the trauma room. 4. A DA Form 67-6 (U. S. Army Officer Efficiency Report), covering the period 21 July to 4 November 1970, shows the rater and endorser stated in summary the applicant: * lacked spontaneity and aloofness * was difficult to work with * refused to willingly engage in menial tasks, unless specifically ordered * was a reluctant Soldier * was found to be pleasant, vocal, highly intelligent, manipulative, and selfish * was most definitely not recommended for promotion or further schooling 5. On 4 November 1971, the applicant tendered his unqualified resignation from the Army under the provisions of Chapter 3, Army Regulation (AR) 635-120, to become effective immediately. He acknowledged that if his resignation was accepted that he: * did not believe in military discipline and would not exercise the prerogatives of the officer over the enlisted man were I called upon to do so * understood it would be under honorable conditions * would be furnished an honorable or general discharge certificate * understood his discharge would be determined by Headquarters, Department of the Army 6. On 10 November 1971, MG O____, strongly recommended approval of the tendered unqualified resignation, as an exception to paragraph 3-1b, AR 635-120. He recommended a General Discharge Certificate (DD Form 257A) be furnished for the reason stated in paragraph 7b(2), AR 635-5. 7. On 9 December 1971, the Adjutant General, directed the issuance of orders, TC 351, effecting the discharge of the applicant from the service in accordance with instructions shown in the subparagraphs below: a. Officer will be discharged honorably as soon as possible. b. DD Form 214 and DD Form 257A will be issued. c. Authority for separation will cite this letter and Chapter 3, AR 635-120, SPN: 524. 8. On 13 December 1971, the applicant submitted a letter to The Adjutant General, Department of the Army, Washington, D.C., protesting the general discharge. The applicant stated in summary: * he signed his resignation with the clear and expressed understanding he would receive an honorable discharge * the stipulation that he accept a general discharge if offered was a formality * there is a lack of lawful basis for any discharge other than honorable * the issuance of a general discharge is an arbitrary and capricious act, and abuse of discretion 9. The applicant’s DD Form 214 shows he was discharged on 14 December 1971, under the provisions of a Department of the Army letter, dated 9 December 1971, Subject: Separation from the service, AR 635-120, chapter 3, SPN: 524, with an under honorable conditions discharge. He completed 1 year, 4 months, and 24 days of total active service this period. 10. There is evidence in the applicant’s record that he petitioned to have his discharged upgraded on four previous occasions listed below: * In May 1972 and 8 March 1973, the Army Board for Corrections of Military Records (ABCMR) denied requests * 13 October 1972, the Army Discharge Review Board (ADRB) denied his request * 23 June 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge, under the provisions of the Department of Defense Discharge Review Program (Special) (SDRP) criteria REFERENCES: 1. AR 635-5 (Personnel Separations Separation Documents) in effect at the time, prescribed the separation documents that will be furnished to each individual who is separated from the Army and establishes standardized procedures for the preparation and distribution of these documents. As directed by the Secretary of the Army or Headquarters, Department of the Army, each officer discharged will be issued an appropriate discharge certificate as follows: a. Honorable Discharge Certificate (DD Form 256A). Except under conditions prescribed below, an officer normally will be given an honorable discharge. b. General Discharge Certificate (Under Honorable Conditions) (DD Form 257A); unqualified resignation in circumstances involving serious misconduct. 2. AR 635-120 (Officer Resignations and Discharges), in effect at the time, prescribed the procedures whereby an officer on active duty could tender his/her resignation or be discharged. Chapter 3 of the regulation specified any officer of the active Army may tender a resignation under the provisions of this section. Normally such resignations will not be accepted unless on the requested date of separation the officer has fulfilled the service obligation. Other than Regular Army officers must be eligible for relief from active duty under the provisions of AR 135-173 and must have completed the service obligation required by law or contract. 3. AR 635-100 (Personnel Separations – Officer Personnel), in effect at the time, provided the authority for the separation of officers from active duty. Paragraph 1-5 specified the character of discharge would be predicated on the officer’s behavior and performance of duty while a member of a military service. Characterization normally would be based on a pattern of behavior and duty performance rather than an isolated incident. There were circumstances, however, in which conduct reflected by a single incident could provide the basis for characterization. An officer would normally be furnished an honorable discharge unless conditions existed or as directed by the Secretary of the Army. DISCUSSION: 1. The applicant through counsel, in effect, requests an upgrade of his discharge. 2. The evidence of record shows the applicant's tender for an unqualified resignation, under the provisions of AR 635-120, chapter 3, was both voluntary and administratively correct. All requirements of law and regulations were met. 3. The applicant’s contention that he signed his resignation with the clear and expressed understanding that he would receive an honorable discharge is without merit. He acknowledged “I understand that my resignation, if accepted, will be under honorable conditions and that I will be furnished an Honorable or General Discharge certificate as determined by Headquarters, Department of the Army.” 4. The applicant’s post service accomplishments are commendable; however, none of these factors, either individually or in sum is so meritorious as to warrant the relief requested. 5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017899 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017899 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2