BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150013408 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: 22 November 2016 DOCKET NUMBER: AR20150013408 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: 22 November 2016 DOCKET NUMBER: AR20150013408 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 upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states it is unjust for him to continue to suffer the adverse consequences of a bad discharge because either there were extenuating circumstances or he simply didn't do what he was accused of doing. Furthermore, he was presented with object lessons of said consequences of misconduct. His company commander was relieved for using marijuana and the regimental commander was relieved for the illegal sale of government property. a. He believes racial discrimination impaired his ability to serve. His absence without leave (AWOL) in April 1968 was due to the riots in his hometown of Chicago. Dr. Martin Luther King was killed when he was home on leave and he had to stay home to protect his family (mother and two younger siblings) from the civil unrest in the streets. Martial law was declared in Chicago. b. In Vietnam, he believed enemy soldiers took pains to inflict greater injury on white Soldiers thereby promoting racial strife. The enemy also distributed leaflets with anti-American literature contributing to the racial tension, segregation, and ill feelings in his company. c. He chose in-country rest and recuperation rather than a decoration. He was reported AWOL instead of on an approved absence. He and another Soldier in his unit captured enemy soldiers in a tunnel. He was berated because his commanders wanted a "body count" not captured prisoners. d. He was confined as a result of a court-martial conviction; however ? * he never threatened the sergeant; what he said was misconstrued * he did threaten to shoot another sergeant because his racial epithets were hurtful, but the applicant was dismayed that this resulted in another charge * he was not asleep on duty; no one can sleep standing up * the marijuana in his possession was taken off a North Vietnamese casualty; he was amazed that the North Vietnamese government was issuing marijuana to their troops, he was simply processing the casualty's gear and turned it in to a noncommissioned officer (NCO) only to incur another charge e. He believes that his discharge should be upgraded because: * he received awards and decorations * he had combat service * there were acts of merit (he captured enemy troops) * he has been a good citizen since discharge * he faced racial discrimination that impaired his ability to serve 3. The applicant provides: * character reference letter from his spouse * college transcripts * state license as a funeral director and embalmer trainee * course completion certificate as a debt collector * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 26 May 1969 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 and entered active duty on 5 September 1967. He completed basic and advanced individual training and received military occupational specialty 11B (Infantryman). 3. He reported to A Company, 1st Battalion, 503d Infantry on 25 April 1968. Thereafter, he received only unsatisfactory conduct and efficiency ratings. He was awarded the Combat Infantryman Badge on 15 August 1968 by Special Orders Number 228 issued by Headquarters, 173rd Airborne Regiment. 4. The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: a. 21 August 1968, for willful disobedience of a lawful order from a commissioned officer to inspect his weapon; b. 26 August 1968, for sleeping on post; c. 9 September 1968, for absence from his place of duty (daylight patrol on 30 August 1968); willful disobedience, on 29 August 1968, of an order not to fire his M-79 grenade launcher; and dereliction of duty by failing to draw his basic load of M-79 ammunition; d. AWOL from his unit at Landing Zone Uplift from 27 October to 1 November, and willful disobedience of the first sergeant; and e. absence from his place of duty on 25 January 1969. 4. While in Vietnam, he was convicted by a two special courts-martial. a. On 4 December 1968 ? * for failing to go to his appointed place of duty * for AWOL from 3 to 16 November 1968 b. On 5 April 1969 ? * communicating threats on 13 February and 22 February 1969 to two NCOs by stating he would shoot them during the next firefight * assault upon a private first class by threatening him with a dangerous weapon on 21 February 1968 * sleeping on post on 25 February 1969 * wrongful possession of marijuana on 12 March 1969 * wrongful use marijuana on 12 March 1969 5. On 20 April 1969 while in an Army correctional holding detachment, his immediate commander recommended the applicant be required to appear before a board of officers to determine whether he should be discharged before the expiration of his term of service due to unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. The commander stated the applicant had two extended periods of AWOL; wrongfully used an illegal substance; and had two counts of threatening to shoot NCOs, three counts of disobeying lawful orders, and failure to repair. 6. He underwent a psychiatric evaluation on 9 May 1968. The psychiatrist diagnosed the applicant with chronic passive-aggressive personality. The psychiatrist determined the applicant had no desire to do his military service and that his prior behavior would probably be repeated if he were retained in the military. Nevertheless, he met retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness). His behavior was normal.  He was fully alert, oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right. 7. The applicant acknowledged receipt of the separation notice and waived consideration of his case by a board of officers. He waived a personal appearance hearing before a board of officers indicating he would not submit a statement in his own behalf and waived representation by counsel. 8. On 9 May 1969, the applicant?s commander recommended he be discharged for unfitness with an Undesirable Discharge Certificate. He stated the applicant had received notification of the separation action. The applicant was AWOL for a total of 18 days and he reiterated the findings of the two special court-martial convictions. He also stated the applicant did not respond to rehabilitative efforts. The chain of command recommended approval and the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate on 23 May 1969. 9. On 26 May 1969 the applicant was discharged under the provisions of Army Regulation 635-212. The discharge was characterized as UOTHC. He had completed 1 year, 6 months, and 22 days of net active duty service. 10. His DD Form 214 shows his authorized awards as the National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal with Device (1960). 11. On 8 June 1977 the Army Discharge Review Board determined that the applicant did not qualify for upgrade of his discharge under the provisions of the Department of Defense (DOD) Special Discharge Review Project (SDRP). 12. The applicant provided evidence showing he attended undergraduate classes in the 1970s, but he did not complete the requirements for an undergraduate degree. In 1995, he received a graduate certificate from the American Collectors Association, Inc. He was a licensed funeral director and embalmer trainee whose license expired on 31 May 2001. His character reference from his spouse attests to his love and support of her, their family and community. Their income sources are limited, relying on Social Security compensation and odd jobs. She feels his combat experience should be taken into consideration as well as his oath to the country. 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. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions including frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 2. The DOD SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether re-characterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), now in effect, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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 maintains that there were extenuating circumstances (such as he was unduly provoked by racial slurs) or he simply did not do the things he was punished for doing. He attributes one of his periods of AWOL to being home on leave during a period of racial strife in Chicago, Illinois. He states he stayed to protect his family. However, the record shows his two periods of AWOL occurred while he was in Vietnam (in-country AWOL). 2. He accepted NJP on four occasions and was convicted by two special courts-martial for commission of multiple offenses including threatening to shoot two NCOs while in Vietnam. The court could have imposed a punitive discharge; however, it did not. It confined the applicant to hard labor. While in the Army correctional control facility in Vietnam, his chain of command initiated separation action and it was approved by the appropriate separation authority. He received an UOTHC characterization of service. 3. The applicant's post-service conduct and accomplishments, including the character reference letter from his spouse, are noted, as is his award of the Combat Infantryman Badge. Also noted is his misconduct in a combat zone. 4. The applicant?s discharge proceedings were conducted in accordance with law and regulations applicable at the time with no indication his rights were violated. The evidence shows he waived his right to representation by counsel during the separation process. 5. 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. 6. 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) AR20150013408 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013408 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2