BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003721 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003721 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003721 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. The applicant states: a. He tried to correct the character of his discharge prior to being released. He was told by military personnel at Fort George Meade, MD, that he would still be entitled to all benefits except burial. b. He was diagnosed with coronary artery disease and he is unable to file a claim after serving in Vietnam for 29 months. He would like a review of the documents he is providing, which show he continued to serve his community and that helping children is his passion. He is a good person and he has continued to help by fostering 123 children and babies born to incarcerated women. c. When he was in Vietnam, he was assigned to Troop D (Air), a helicopter unit. He got a letter from "Wards" for $9,000.00; consequently, he was really upset. He was already there for 10 months. He was in Xuan Loc at the time mortars started coming in. He watched seven helicopters get blown up. One mortar landed less than ten feet from him. Had he not being laying on the ground, he would not be here. He remembers little tree limes falling on him as he crawled across the ground through a mess tent. d. A man had his arms wrapped around one of the tent poles and was crying. He had to slap him and pull his hands off the post. They crawled back to a trench. When they were in the trench, a warrant officer in his underwear patted them on the back and said "rear aschalon soldier hun" (sic). He ran out on the helicopter pad and got into a helicopter that was not blown up and took off in it. A few minutes later, the mortars quit coming in and it quieted down. That same night, a man was getting into his sleeping bag and was bitten on the leg by a cobra. He heard later that he lived. At this time he was a specialist five. The next day, he told his first sergeant and company commander, and they flew him out of there in a helicopter back to their main base. From there, he flew back to the U.S. and went back to Fort Riley, KS. e. His wife had told him that her boyfriend signed his name for the $9,000.00. They got a divorce in the courthouse one room below where they got married. He flew back to Vietnam and someone else had his job so he had nothing to do for 18 days other than drink. He then flew back to the U.S. He could not stand it. He had already reenlisted before the first time he was in Vietnam, so he volunteered to go back to Vietnam. He went back to Da Nang. In the Post Exchange (PX), they were in charge of the beer that came to that area. He stayed drunk for almost a solid 19 months. f. They lived downtown in a motel that the Navy had. They stayed there for nothing and the Army payed them $77 a month. There were no rules. There was a morgue by the Da Nang runway that he went to at least three times a week. He saw at least 40-50 dead Soldiers every time he went. He saw Vietnamese men spraying them with insect repellant. By the Da Nang River, there was a lot of killing; they would drag the bodies out by the road. Some were half bodied, some just a head or even less. They would pour lime over them and leave them there for three days so if someone knew them they could take them. g. They had some good times there. He remembers Bob Hope and Robert Mitchum. He served Robert Mitchum coffee. On Hill 327 is where Bob Hope was. The PX was blown up shortly after he had left there. There had to be millions of dollars' worth of supplies in there. He did a lot of stupid stuff while he was over there. h. After returning home, he went to Fort Benning, GA. He thought he was going back to being a cook. When he got there, they had nothing but civilians cooking, and once again he had nothing to do, so he went home. When he returned home, he met a woman and he married her after getting out of jail. They had a good life together for 21 years until she passed away in 1989. They had two kids, but he helped many more kids. Two years later he met Linda; they eventually got married. She had lost her sister to cancer before he met her. i. He and Linda sold their houses and together they bought 50 acres of land out in the country. They took in 123 foster kids and prison kids over the years. Around the holidays, they found families in need or families who lost family members to cancer and would give them everything they needed from Christmas to New Year. j. He lost Linda to cancer in April 2013. He has not been in trouble since getting out of the Army. Many of the kids he helped and fostered throughout the years still come to the house and call him "Dad" and their kids call him "Papa." He has never been without a job or been in trouble since. 3. The applicant provides three third-party character reference letters, a DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), and two DA Forms 2627 (Summarized Record of Proceedings under Article 15, UCMJ). 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 12 August 1961. He was honorably discharged on 11 August 1964 for the purpose of immediate reenlistment. He reenlisted on 12 August 1964 for a period of 6 years. 3. The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 30 September 1965 to 7 September 1966 and from 17 March 1967 to 11 July 1968. 4. The applicant's records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on: * 13 June 1967, for violating a standing order by being out past curfew and for being in an off-limits area * 1 March 1968, for failure to repair and for violating instructions by failing to be in his quarters at the time prescribed 5. The applicant was convicted by a special court-martial on 22 April 1968 of violating a lawful regulation by purchasing three privately own vehicles without proper permission. 6. The applicant's records show he accepted NJP under the provisions of Article 15 of the UCMJ on: * 21 June 1968, for stealing 150 cases of beer, the property of the United States * 3 July 1968, for violating instructions by being apprehended by the Armed Forces Police in an off-limits area 7. The applicant's records contain a DD Form 553 (Absentee Wanted by the Armed Forces) that shows he departed absent without leave (AWOL) on 11 October 1968. His DD Form 20 shows he remained AWOL until 18 February 1969. 8. The applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing; however, his records contain a Form 1AA 653-1 (Individual Statement – Separation under Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability)), which shows that on 2 May 1969, he consulted with legal counsel and was advised of the basis for a contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212. The form also shows that he: * waived consideration of his case by a board of officers * did not submit a statement * waived representation by counsel * acknowledged he understood he might expect to encounter substantial prejudice in civilian life by reason of a general discharge under honorable conditions * acknowledged he understood that as a result of issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws 9. The applicant's record includes a DD Form 214 that shows he was discharged on 14 May 1969 under the provisions of Army Regulation 635-212. He accrued 183 days of lost time. He was assigned separation program number (SPN) "386," indicating he was separated for unfitness. His DD Form 214 also shows his character of service as under conditions other than honorable. 10. There is no evidence that indicates he applied to the Army Discharge Review Board for an upgrade of his discharge. 11. The applicant provides three third-party character reference letters that attest to his character and to his numerous positive contributions to society as a foster parent. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. The regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, provides the Army's enlisted administrative separation policy: 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. DISCUSSION: 1. The applicant's record shows he was discharged under the provisions of Army Regulation 635-212. He was assigned SPN "386," indicating he was separated for unfitness. In the absence of evidence to the contrary, it is also presumed that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. 2. The evidence of record clearly establishes a disciplinary history for multiple offenses that resulted in NJP on four occasions, a special court-martial conviction, and 183 days of lost time. 3. The character reference letters he provided attesting to his highly positive contributions to his community and to society are noted. Post-service conduct is not normally a basis for upgrading a characterization of service. 4. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003721 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003721 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2