IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150002856 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 IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150002856 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR2002075375, on 3 December 2002. ___________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: 28 July 2016 DOCKET NUMBER: AR20150002856 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, in effect, reconsideration of upgrade of his general discharge to honorable. 2. The applicant states that his discharge characterization was too harsh. He states that he is suffering physically and mentally, and is a miserable veteran because of his wounds. 3. The applicant provides: a. Copies of selected documents from 1968 to 1970 from his military service health record. b. DD Form 214 (Report of Separation From Active Duty) for the period of service from 29 November 1963 to 17 July 1970 showing his characterization of service as under honorable conditions. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in docket number AR2002075375 on 3 December 2002. 2. The applicant's military records show that he enlisted in the Regular Army on 27 September 1962. After completing basic training, he was assigned as a light vehicle driver and advanced to the rank of private first class (PFC)/E-3. He also earned the Parachute Badge. 3. On 28 November 1963 he was honorably discharged to re-enlist on 29 November 1963 for a 6-year period of service. On 5 July 1964, he was given nonjudicial punishment for disobeying a lawful order for which he was reduced from PFC to private (PVT)/E-2. On 17 July 1964, he was given nonjudicial punishment for sleeping on duty on 17 July 1964 for which he was reduced from PVT/E-2 to PVT/E-1. 4. From 18 May 1965 to 6 May 1967, he was assigned in Germany to the 504th Infantry Regiment and subsequently to the 58th Infantry Regiment. a. On 20 May 1965, the applicant he was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) 4 November 1964 to 9 April 1965 from his place of duty, the Replacement Station at Fort Dix. He was sentenced to confinement at hard labor (CHL) for 6 months and forfeiture of $45 pay per month for 6 months. b. After completing his sentenced confinement, he was assigned initially as a light vehicle driver and later as an infantry patrol leader. He advanced through the ranks to sergeant (SGT)/E-5 on 18 November 1966. 5. From 19 June 1967 to 31 January 1968, he was assigned to the 325th Infantry Regiment at Fort Bragg, North Carolina, as an infantry squad leader. On 18 October 1967, he was given nonjudicial punishment for violation of a lawful regulation failing to sign out on pass or leave for which he was given an oral reprimand. 6. From 22 February 1968 to 10 February 1969, the applicant was assigned overseas in U.S. Army Pacific, Vietnam, as a SGT/E-5 infantry squad leader in Company E, 1st Battalion, 46th Infantry, 198th Infantry Brigade. a. On 14 April 1968, he received a mortar fragment wound to the neck and right hand, was evacuated to a hospital in theater, and was treated with stitches and cast for his right hand. He received a Purple Heart for these wounds. On 20 May 1968, medical authority found that the wounds were well healed but the applicant complained of pain in making a fist. He was returned to duty with a temporary profile for 1 month. b. On 10 July 1968, the applicant was given nonjudicial punishment for being AWOL on 9 July 1968 for which he was sentenced to forfeiture of $70 for 1 month. c. On 7 December 1968, the applicant was promoted to staff sergeant (SSG)/E-6. d. For his service in Vietnam, in addition to his Purple Heart, he was awarded a Combat Infantryman Badge (CIB), the Vietnam Service Medal with two bronze service stars, and the Vietnam Campaign Medal with 60 device. 7. On 11 April 1969, the applicant was reassigned to the 1st Battalion, 29th Infantry Regiment at Fort Benning, Georgia, as an infantry operations and intelligence specialist. a. On 18 July 1969, the applicant was convicted by a SPCM for failure to obey a lawful order, using disrespectful language toward a superior, failure to go to his appointed place of duty, and AWOL on three occasions (10-13 June 1969, 2-7 July 1969, and 7-9 July 1969). He was sentenced to CHL for 6 months (excess of 1 month suspended for 6 months), forfeiture of $109 pay per month for 6 months, and reduction to pay grade of private E-1. b. On 15 April 1970, the applicant was convicted by a general court-martial (GCM) of being AWOL from 8 October 1969 through 10 February 1970 (4 months). He was sentenced to a bad conduct discharge (BCD), forfeiture of all pay and allowances, CHL for 7 months, and reduction to pay grade E-1. c. On 3 June 1970, a physical examination cleared the applicant for discharge. No abnormalities or defects were noted by medical authority. The applicant hand-wrote “I’m physically OK” and did not check that he had any abnormalities or defects. d. On 15 July 1970, the Army Court of Military Review affirmed the GCM finding of guilty and the sentence, with the exception that the CHL was remitted after 15 July 1970. e. Accordingly, on 17 July 1970, the applicant was discharged with a BCD under authority of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, by reason of a GCM sentence. 8. His DD Form 214 shows he had 5 years, 11 months, and 28 days of creditable service with a total of 366 days of lost time due to AWOLs and sentence confinements. 9. During his service, he was awarded: * Purple Heart * Vietnam Service Medal with two bronze service stars * Republic of Vietnam Campaign Medal with 60 device * National Defense Service Medal * Combat Infantryman Badge * Parachute Badge * Expert Marksmanship Qualification Badge with Auto-Rifle and Rifle Bars * two Overseas Bars 10. On 3 May 1972, the ABCMR considered his application for upgrade of his BCD discharge. After examining and considering his military records (including his service in Vietnam) and facts presented by the applicant, the ABCMR denied his application for discharge upgrade finding no material error or injustice in his discharge. 11. On 1 November 1975, as a result of a review of his military records (to include his combat record, awards and decorations, nonjudicial punishments, SPCM, and GCM) by the Presidential Clemency Board (PCB), he was notified by the Office of the Pardon Attorney that President Ford had granted him a full and unconditional pardon and a clemency discharge. It is noted in the PCB case summary that the applicant stated that both the AWOL for which he received the BCD and his earlier AWOLs occurred because of serious marital difficulties he was experiencing and he believed it necessary to return home to attempt to resolve his marital problems. 12. On 11 February 1976, he was notified by the Office of The Adjutant General that he had been awarded a clemency discharge pursuant to Presidential Proclamation 4313 of 16 September 1974. He was provided a clemency discharge DD Form 215, dated 16 January 1976, to so amend his DD Form 214 BCD discharge. By attaching this pardon and clemency, his federal civil rights were restored and his BCD was to be considered a neutral discharge, neither honorable nor less than honorable. 13. On 21 June 1976, the ABCMR after careful review of the applicant’s military records and matters presented by the applicant and finding no new evidence of any material error or injustice in his record or discharge, denied the applicant’s request for reconsideration of his of the 3 May 1972 ABCMR decision which denied upgrade of his BCD. 14. On 24 February 1977, the Army Discharge Review Board (ADRB), under the Special Discharge Review Program (SDRP) conducted a review of the applicant’s military records in accordance with the provisions of an extension of the Presidential Proclamation 4313 that directed that the discharge of former service members wounded in combat or who received decorations for valor during the Vietnam Era and received a clemency discharge should be reviewed on an individual basis. After conducting a detailed review of the applicant’s military records, the ADRB found that the applicant was properly but not equitably discharged and directed that his BCD be upgraded to a general discharge (GD) under the provisions of the Presidential Proclamation 4313 Extension. On 17 March 1977, the applicant was provided a new DD Form 214 that showed he was discharged by authority and reason of the Presidential Proclamation 4313 Extension with a character of service of general under honorable conditions. 15. On 23 May 1978, the ADRB reviewed the applicant’s request for a discharge upgrade and finding no error or inequity in his record of military service or his discharge, denied his request. 16. On 1 September 1978, the ADRB reviewed the applicant’s records in compliance with Public Law 95-126 which required a case-by-case review of military records of former Vietnam Era Soldiers whose less than under honorable conditions discharge were upgraded by as a result of the Presidential Proclamation 4313 and SDRP and who were discharged for being AWOL, to determine if the former Soldier’s upgraded discharge would should be affirmed under uniform standards that would authorize VA benefits for the Soldier. The ADRB, after a full review of the applicant’s military records and service (to include combat service, awards, and disciplinary record) voted unanimously that the applicant did not qualify for upgrading of his BCD to GD under the uniform standards for discharge review. Accordingly, the discharge upgrade issued under the SDRP was not affirmed. The ADRB considered the applicant’s AWOLS, three courts-martial, and disciplinary record in itself sufficient to not warrant affirmation of the applicant’s GD. This decision did not change the applicant’s GD provided by the SDRP, but in accordance with Public Law 95-126, the applicant would not be able to use the upgraded GD discharge to qualify for benefits under the VA. On 31 October 1978, the applicant was issued a DD Form 215 to this affect. 17. The applicant requested a personal appearance before the ADRB and he was notified that he was granted a personal appearance. However, the applicant did not respond to the personal appearance notification, and his application was closed without action since he had previously received an ADRB records review and decision on 23 May 1978. 18. On 3 December 2003, in response to the applicant’s request, the ABCMR reconsidered the board’s 3 May 1972 decision to deny his request for upgrade of his BCD. He requested an upgrade to an HD. He contended that his entire military service, PH, combat in Vietnam, and severe psychological and emotional pain and stress from service in Vietnam were not considered and thus his discharge was inequitable. The ABCMR did a complete new review of the applicant’s records and military service and determined upgrade to an honorable discharge was not warranted. It was noted that he had a record of misconduct before and after his service in Vietnam. The Board determined that his overall service was not fully honorable and did not meet the criteria for an honorable discharge. They also noted that the applicant had not shown justification for an HD, either based on his Vietnam service, or any medical or mental condition related to that service. The ABCMR denied the applicant’s request for an HD. 19. The Army Review Boards Agency clinical psychologist reviewed the applicant’s case files and opined that it was not possible to confirm the existence of PTSD during the applicant’s military service or if PTSD may have been a mitigating factor for the misconduct that resulted in his discharge. The applicant was provided a copy of this opinion under ex parte rules. The applicant has not provided any response to this opinion. REFERENCES: 1. The Manual for Courts-Martial (MCM), appendix 12, lists the maximum punishment for violation of article 86, AWOL for more than 30 days as a dishonorable discharge (DD), the lesser BCD, and confinement up to 1 year. 2. Army Regulation 635-200, sets forth the basic authority and character of service 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. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973. The clemency discharge did not affect the individual's underlying discharge characterization and did not entitle them to any VA benefits. Rather, it restored federal and, in most instances, state civil rights, which may have been denied due to the less than honorable discharge. 4. On 19 January 1977, an extension of the Presidential Proclamation 4313 was issued which directed an individual review of discharges of former service members who were wounded in combat or received decorations for valor during the Vietnam era and applied to the clemency program. On 4 April 1977, the Department of Defense (DoD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DoD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 5. Public Law 95-126 enacted by Congress on 8 October 1977, required Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP or Presidential Proclamation 4313 Extension to affirm or not affirm the discharge characterizations under uniform standards. Individuals whose SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits. However, this review would not change the character of discharge that existed at the time of the review. DISCUSSION: 1. The applicant contends that his discharge characterization was too harsh. He was discharged with a BCD by a GCM for being AWOL for 4 months. By the MCM, the GCM could have imposed a harsher DD discharge. 2. The applicant’s BCD discharge was upgraded to a GD by the SDRP under the Presidential Proclamation 4313 Extension which took into consideration being wounded in combat in Vietnam as mitigation for his BCD. His DD Form 214 still shows GD as his characterization of service. 3. Considering his record of misconduct before and after service in Vietnam, to include periods of AWOL, nonjudicial punishments, two SPCM and a GCM, and considering his service in combat and receiving a PH, a GD is the appropriate characterization of his service according to Army Regulation 635-200 which states that a GD is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. An HD requires that 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. Based on the applicant’s record of misconduct, he did not meet the standards of acceptable conduct and performance of duty for Army personnel nor was his service so meritorious as to warrant an HD compared to the honorable service of other Soldiers who served in Vietnam and did not have serious misconduct in their records. 4. The applicant contends that he is suffering physically and mentally because of his service and his wounds. While this is discounted, there is no evidence that the applicant had any physical or mental disability while in the service that might be considered a mitigating relative to his misconduct. It is noted that he had periods of AWOL and misconduct both before and after his service in Vietnam. He stated to the SDRP that his periods of AWOL before and after Vietnam were because of marital problems. Following his recovery from his wounds in Vietnam that earned him the PH, he was returned to duty with no permanent profile or disability. He wrote on his separation medical history that he was physically okay and did not check that he had any medical, physical, or psychological problems. His separation physical noted no abnormalities or disabilities (physical or psychological). An ARBA clinical psychologist was unable to confirm any behavioral health issues that might have been a mitigating factor for the misconduct that resulted in his discharge. 5. The applicant’s full military records have been fully considered by seven different boards since his discharge: the PCB, three times by the ABCMR, and three times by the ADRB (which included under SDRP and review under Public Law 95-126). In each case, the boards rendered a decision based on his full military record considering his awards and decorations, his combat service, his PH, and his record of misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002856 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002856 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2