IN THE CASE OF: BOARD DATE: 20 November 2020 DOCKET NUMBER: AR20200000986 APPLICANT REQUESTS: Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show restoration of his rank/grade to specialist four (SP4)/E-4. Additionally, he requests to be pardoned for his court-martial offense. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement requesting a pardon * Petition for Pardon After Completion of Sentence * Character Affidavits x3 * Personal Character References x2 * Photographs x2 * DD Form 214 * Correspondence x3 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states the White House forwarded a big book with awards of the Purple Heart, court-martial, medical records, pictures, and a letter from a senator. However, no big book was received; only the documents that are listed above were received with his application. Additionally, he states in a request for pardon: a. He was drafted into the Army of the United States (AUS) on 7 September 1967, and he went to basic training at Fort Bliss, TX, followed by advanced infantryman training at Fort Polk, LA. b. In January 1968, he deployed to the Republic of Vietnam (RVN) and he was assigned to 5th Battalion, 7th Regiment, 1st Cavalry Division. After serving 3 months in a combat theatre, he was severely wounded in May 1968 and he was transferred from Vietnam to Camp Zuma, Japan, for treatment. Later he was assigned to Fort Carson, CO, Fitzsimmons General Hospital. c. During his assignment at Fort Carson, he went absent without leave (AWOL) from the hospital from 25 February to 1 April 1969. He was later detained in Enid, OK, returned to Fort Carson, and he was placed in the Fort Carson Detention Center, Special Processing Detachment (SPD). Fearing for his safety during the race riots as well as mistreatment by his [chain of] command, he went AWOL from the SPD from 30 April to 20 August 1969. He was detained and sent to Fort Sill, OK for medical treatment and [separation] processing. d. On 18 September 1969, he was given a special court-martial for the two AWOL offenses for which he received a reduction from specialist four/E-4 to E-2, a fine, and restriction to the post. He was placed in the Medical Holding Company, Fort Sill [pending treatment and retirement processing]. On 17 March 1970, he was medically retired from the United States Army with an 80% disability rating and an honorable discharge. e. He believes the lack of leadership was a contributing factor to both of his periods of AWOL. The Fitzsimmons Hospital command was not properly informing him of his condition and future plans. He overheard medical professionals stating they were unsure about the process to make him whole. This created uncertainty for him. His view was he had fulfilled his service [obligation]. The command should have properly informed him that he was being held for treatment and medical retirement. They should have given him a job that kept his mind on tasks instead of the unknown. Upon returning from the first period of AWOL he received harsh treatment to include removal of his jaw brace and he was placed in a threating environment which brought about the second period of AWOL. f. He believes the Fort Carson commander should have return him to the Medical Holding Company, Fitzsimmons Hospital, where a field grade Article 15 would have sufficed [as punishment for his offenses]. The Fort Carson SPD created conditions that demeaned him as a Soldier and he was not provided adequate medical attention, which was the primary reason for his unauthorized departure. g. The Constitution provides citizens freedom from cruel and unusual punishment. The Uniform Code of Military Justice (UCMJ) is a subsidiary of the Constitution. Confining him to hard labor with his serious medical condition constitutes cruel punishment. h. During his incarnation at the Fort Carson Dentition Center the wire brace was removed from his jaw. The reason for this was he might sell the brace, which is false since the brace required removal by a medical professional. The action by the command was spiteful and resentful. This was cruel and abusive punishment just for going AWOL. He had served honorably in combat which resulted in being wounded over the majority of his body to include a smashed jaw. His smashed jaw was held to together by a golden wire brace that was his reward for his service. i. He believes the summary court-martial should be, in effect, set aside. He has been a good citizen and he served his country honorably until he was severely wounded. There is no excuse for going AWOL or being dropped from Army rolls, but his punishment should have been dealt with differently. He was dealt unlawful punishment when he was given hard labor and his wire brace was removed, it is for this reason that he believes removal/set-aside of the court-martial should be approved. 3. The applicant provides: a. Petition for Pardon After Completion of Sentence, dated 16 September 2017, showing he pled guilty and was convicted at Fort Sill, OK, of being AWOL from Fort Sill Hospital and of being AWOL from the Fort Carson Detention Center. This petition also states the reason for seeking a pardon is: (1) Forgiveness and correction of the conviction. (2) He suffered from a traumatic event which impaired his decision process. He was wounded and suffered head trauma. The head trauma affected his ability to rationalize. (3) He suffered from abuse at Fort Carson and he was denied medical care. He did not receive any judicial or nonjudicial punishment [prior to the AWOL offenses that justifies] the command sentencing him to hard labor. He also feared for his safety. (4) Since his departure from the military, he has assisted others in improving their quality of life. He has also worked and prospered in his own business until retirement. (5) To correct an injustice that he suffered from the Army by receiving harsh and inhumane treatment before trial. He believes his leadership thought he was worthless after he was wounded. (6) He served his country and received a broken body for doing his job. He is pleading that the Board make him whole, so that his service is not in vain. b. Three Character Affidavits. (1) Mr. MD states he has known the applicant approximately 20 years and he is a very compassionate person. He is willing to help people in need, not only financially, but working to help them with many different needs. He loves his country, after he was treated badly, he was still willing to fight for his country. (2) Mr. RL states the applicant is one of the nicest people that he has ever met. He is a very loving person and he cares about people. They have been friends for a very long time. He is very thoughtful and willing to help anyone. He loves the Lord and he is a very honest person. (3) Mr. DDD states he has known the applicant for the past 18 years and he is a man of integrity and sterling character. He selfishly gives of himself. He is a loyal patriot. He has limited resources, but he is always helping others. He sends kids to camp and provides groceries for families in need. c. Two Personal Character References from. (1) Pastor DDD states he is the lead pastor of the church the applicant attends. He has observed the applicant in many settings; they have been in each other’s homes. He has walked with the applicant and his family through times of family illnesses and times of loss and he has officiated in at least two of the applicant’s family member’s funeral. The applicant after being through so much demonstrates sterling character and the utmost integrity. The applicant respects the rule of law and conducts himself as a true patriot. The applicant’s transformation through faith in God is compelling and evident in the way he conducts himself daily. The applicant is a hardworking man in spite of the disabilities that he endures. He is always selfless and seeks to help others. The applicant sacrifices to send kids to camp or provide for the needs of families going through hardships. He can be trusted and he is an honorable man. (2) Mr. MD repeats the statements made in his Character Affidavit above. d. Two photographs show. * The first photograph is of an individual who appears to be sitting in a hospital bed and he has a large scar on his chest; the back of the photograph states, “1968, severely wounded, Camp Zama Japan” * the second photograph contains a large piece of shrapnel that the individual alleges to be the source of one of his injuries; the back of this photograph states, “the biggest piece of shrapnel from my chest” e. Three pieces of correspondence. (1) Letter from the White House, dated 12 June 2019, telling the applicant his request has been forwarded to the appropriate Federal Agency. (2) Letter from Congressional Liaison Inquiries, dated 13 June 2019, providing the applicant a DD Form 149. (3) Letter, dated 4 November 2019, from the applicant relating to his DD Form 149. 4. In regards to the requests for a pardon. Pardons are not under the purview of the Army Review Boards Agency. For information on how to apply for a pardon, one should visit the United States Department of Justice website: https://www.justice.gov/pardon/pardon-information-and-instructions This issue will not be further addressed in this Record of Proceedings. 5. The applicant was inducted into the AUS on 7 September 1967. He held military occupational specialty (MOS) 11B (Light Weapons Infantryman). He was assigned to Vietnam from 23 February to 26 August 1968. 6. His DA Form 20 (Enlisted Qualification Record) shows: a. Item 33 (Appointments and Reductions), he was advanced to the rank of: * private first class (PFC)/E-3, on 28 February 1968 * specialist four(SP4)/E-4, on 30 October 1968 b. Item 38 (Conduct/Efficiency) ratings of excellence on four occasions, which includes when he was in the hospital. His conduct and efficiency are rated as unsatisfactory twice when he was being carried in a dropped from Army rolls/deserter status. c. Item 38 (Record of Assignments) on: * 28 February 1968, he was assigned to Company C, 5th Battalion, 7th Cavalry, 1st Cavalry Division, Vietnam, with duties in MOS 11B * 17 May 1968, he was assigned to the Medical Hold Detachment, Camp ZAMA, Japan, in a patient status [after he received multiple fragment wounds to the body on 6 May 1968] * 26 August 1968, he was assigned to the Medical Company, Fitzsimons General Hospital, CO, in a patient status * 24 March 1969, he was dropped from Army rolls and carried in a deserter status [after he went AWOL on 23 February 1969] * 1 April 1969, he was assigned to the SPD, Fort Carson, CO, as a duty Soldier * 30 April 1969, he went AWOL * 2 May 1969, he was dropped from Army rolls as a deserter * 23 August 1969, he was assigned to the SPD, Fort Sill, OK 7. The following orders from Headquarters, 1st Cavalry Division (Airmobile) show: a. General Orders awarded him the Army Commendation Medal (ARCOM) for meritorious service in connection with military operations against a hostile force in the RVN from February 1967 to May 1968. b. General Orders awarded him the Air Medal for meritorious achievement while participating in aerial flight in the RVN from February to May 1968. 8. Special Court-Martial Order shows, on 18 September 1969, the applicant was convicted of being AWOL from 23 February to 1 April 1969 and from 30 April to 20 August 1969. He was sentenced to a forfeiture of $20 pay for 6 months and reduction to private/E-2. On 2 September 1969, the sentence was approved and ordered duly executed. Accordingly, he was reduced to private/E-2 on 18 September 1969 9. On 30 September 1969, while undergoing medical care or during the course of hospitalization, the applicant was advised his period of service would expire and he was provided his options. He voluntarily agreed to remain on active duty beyond his scheduled date of expiration term of service for the purpose of continuing medical care. 10. Physical Evaluation Board Proceedings, dated 12 February 1970, found the applicant medically unfit for further military service under the provisions of paragraph 3- 14c(1), AR 40-501 with an 80% disability. The applicant concurred and waived a formal hearing of his case on 13 February 1970. He was also determined to be: * physically unfit for military service * disability was incurred while entitled to receive basic pay * disability was the proximate result of the performance of military service * disability was not due to misconduct, or willful neglect, or incurred during a period of unauthorized absence * disability was a result of armed conflict * disability was caused by an instrumentality of war c. The board found the applicant medically unfit for further military service under the provisions of paragraph 3-14c(1), AR 40-501 with an 80% disability. d. He concurred and waived a formal hearing of his case on 13 February 1970. 11. On 17 March 1970, he was permanently retired by reason of physical disability, in the rank/grade of private/E-2. His DD Form 214 shows in: * Grade, rate rank, “PVT (P) E-2” * Date of Rank 18 September 1969 * Net Active Service this Period, 2 years, 1 month, and 12 days * Foreign and Sea Service, USARV, 6 months and 4 days * Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized, National Defense Service Medal, Vietnam Service Medal, Purple Heart, Republic of Vietnam Campaign Medal with 1960 Device, Marksman Marksmanship Qualification Badge (Rifle) * Remarks, 80% disability; 149 days of lost time 12. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in the Republic of Vietnam. The applicant was assigned to Company C, 5th Battalion, 7th Cavalry, 1st Cavalry Division, Vietnam, during a period for which the unit was awarded the Gallantry Cross with Palm Unit Citation by Department of the Army General Order (DAGO) Number 59, dated 1969. 13. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. It provided that the DD Form 214 is a summary of a Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge. 14. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. The ABCMR is not empowered to set aside a conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 15. In reaching its determination, the Board can consider the applicant's petition, his submissions, his arguments, service record, his claims of a traumatic event and trauma to his head affecting his decision making abilities, and his contentions in light of the published Department of Defense guidance on equity, injustice, or clemency. 16. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents to include letters of support, and the application for presidential pardon; as well as the applicant's records in the Armed Forces Health Longitudinal Technology Application (AHLTA), and the VA's Joint Legacy Viewer (JLV). 2. The 10 December 1969 US Reynolds Army Hospital Narrative Summary indicated the applicant sustained multiple moderate to severe complicated injuries to his face, jaw, neck, and muscles to his right clavicle and shoulder due to fragment of a motor round during combat in the Republic of Vietnam on 7 May 1968. From August 1968 to February 1969, he was treated for the jaw wound that was complicated by disfiguring scar formation. While awaiting repair by Plastic Surgery, he went on leave to attend his grandfather’s funeral. He remained absent without leave (AWOL 23 February 1968 to 1 April 1969) and the Fitzsimmons Hospital, medical notes annotate that his absence was due to “family and financial difficulties”. He was arrested by federal authorities and detained at Ft Carson Dentition Center. Allegedly, during transfer processing to Ft Sill, he was found to be AWOL again (30 April 1969 to 20 August 1969). He reportedly was in the Stockade at Ft Sill for 23 days and then was transferred to the Special Processing Detachment where he was placed on numerous work details before being referred to the Surgical Clinic at US Reynolds Army Hospital for his right shoulder and chest pain due to cicatrix (scar formation and contraction of fibrous tissue) traction. 3. At the time of the Narrative Summary, he was stable but he could only perform limited duty. The 6 January 1970 MEB Proceedings showed U3 physical profile and he was referred to a Physical Evaluation Board (PEB). The 12 February 1970 PEB Proceedings showed the following disabilities: Disfiguring scars of face and neck; Malunion of right mandible; Lateral and Infrahyoid Group XXII muscle injury; Right extrinsic muscles of shoulder girdle Group II muscle injury manifested by marked atrophy and weakness; and Impairment of the right clavicle. The severity of the injuries ranged from complete to moderate and all were determined permanent in nature. His disposition was medically unfit and permanent retirement with a combined rating at 80%. Based on review of available records, the disfiguring face and neck scars, right jaw injury, and muscle injuries to the neck, left chest, right clavicle, and right shoulder, did not meet retention standards in accordance with AR 40-501. 4. On 3 August 2005, thirty plus years after discharge, he was diagnosed with PTSD by the VA. The severity of his injuries reasonably support the condition’s probable influence on his behavior at the time. In addition, per his testimony, there was a direct nexus between his injuries and the reason for his offences. In regards to the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, the PTSD diagnosis would be considered mitigating for his misconduct; however, the characterization of his service was honorable, so there is no need for discharge upgrade. He did however receive reduction in rank from E4 to E2 and underwent court martial, which the Board will address. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct, and the basis for his court-martial conviction. The Board considered the review and conclusions of the ARBA Medical Advisor. The Board found insufficient evidence of in-service mitigating factors that would support modifying his court-martial sentence. Based on a preponderance of evidence, the Board determined the court-martial sentence the applicant received was not in error or unjust. 2. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Other than the corrections addressed in Administrative Note(s) below, the Board determined 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 otherwise insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons, Awarded or Authorized) of his DD Form 214 ending on 17 March 1970 by adding the Army Commendation Medal, Air Medal, Gallantry Cross with Palm Unit Citation, and two bronze service stars to be worn on the VSM. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. The ABCMR is not empowered to set aside a conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active service. The instructions for completing the DD Form 214 specified: * items 5a and 5b show the active duty rank/grade held at the time of separation * item 6 shows the effective date of rank (the rank a Soldier held at the time of separation) 4. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated, in part, that the promotion of enlisted personnel, appointments, grade reductions, and grade restoration were announced in orders. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000986 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000986 11 ABCMR Record of Proceedings (cont) AR20200000986 10