BOARD DATE: 20 April 2017 DOCKET NUMBER: AR20150017698 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: 20 April 2017 DOCKET NUMBER: AR20150017698 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: 20 April 2017 DOCKET NUMBER: AR20150017698 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 bad conduct discharge to fully honorable. He also requests a correction of his: * Narrative Reason for Separation from Chapter 11, Army Regulation (AR) 635-200 (Personnel Separations, Separation Program Number (SPN) 292 (Court-Martial) to "Convenience of the Government * Reenlistment (RE) Eligibility Code from RE-4 to RE-1 with a corresponding SPN 2. The applicant states he believes his discharge should be upgraded for the following reasons, as supported by a social worker statement: a. The following issues are the reasons he believes his discharge should be upgraded to honorable. If the Board disagrees, it should explain in detail its disagreement. The presumption of regularity that might normally permit the Board to assume that the service acted correctly in characterizing his service as less than honorable does not apply to his case because of the evidence he is submitting for the following reasons: he had combat service; he was so close to finishing his tour that it was unfair to give him a bad discharge; his ability to serve was impaired by his background; and his ability was impaired by his youth and immaturity. b. He volunteered for active duty service in January of 1966. He had to get a waiver due to his criminal record for driving a stolen car in 1964. In basic combat training (BCT), he received an Article 15 for showing disrespect to a supervisor. While in advanced individual training (AIT), he went on pass and realized he would not get back in time. He was in contact with his unit, who stated he would be in trouble if he came back late, so he decided to go home instead. His mother reported him [to military authorities] and the Military Police came and picked him up. He had multiple infractions before being sent to war demonstrating that he was not adapting to the military culture. c. He was sent to war where his pattern of behavior was consistent with his early entry [behavior]. There is no evidence that he was counseled that his actions could get him removed from military service. After serving in combat in Vietnam, where he was first offered marijuana by fellow Soldiers, he returned to the United States with an attraction for the drug. He was then thrown out for having approximately one ounce of marijuana on him. His behavior was established early in his service, potentially due to unresolved issues stemming from trauma suffered as a small child when he witnessed his friend and friend's family burn to death in a trailer and when he recovered dead bodies from the river. d. He enlisted to serve in the military and was given a waiver by the U.S. Army to do so. His 3-year enlistment started on 10 January 1966. Even though he had a pattern of misconduct, he was sent to serve his country in combat on foreign land. Only after returning to the States as a combat veteran, was his consistent pattern of behavior looked down on and he was arraigned less than 2 months before his separation date. He was then discharged into society without any support for a combat veteran. He was unaware he could file for an upgrade and takes full responsibility for his actions while he was in, although not fully understanding the impact of his actions nor receiving corrective support other than punitive action. 3. The applicant provides: * DD Form 4 (Enlistment Record – Armed Forces of the United States) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * letters of support * court-martial conviction record 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 for a 3-year term on 10 January 1966. He was assigned to Fort Polk, LA for BCT. 3. On 3 March 1966, in BCT, he accepted nonjdudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful to a superior noncommissioned officer. 4. He completed AIT at Fort Gordon, GA, and he was awarded military occupational specialty 31M (Radio Relay and Carrier Attendant). 5. On 11 August 1966, in AIT, he again accepted NJP for being absent without leave (AWOL) from 1 August to 10 August 1966. His punishment consisted of a reduction to the lowest enlisted grade of E-1, a forfeiture of pay, and extra duty. 6. On 9 September 1966, he departed his Fort Gordon unit in an AWOL status and on 8 October 1966, he was dropped from the rolls as a deserter. He ultimately returned to military control on 7 November 1966. 7. On 11 January 1967, he was convicted by a special court-martial of one specification of AWOL from 9 September 1966 to 7 November 1966. The court sentenced him to a reduction to the lowest enlisted grade, confinement at hard labor for 5 months, and a forfeiture of pay for 5 months. The convening authority approved the sentence on 23 January 1967 but suspended the confinement. 8. The applicant served in Vietnam from on or about 7 March 1967 to on or about 6 March 1968. He was assigned to the 9th Signal Battalion, 9th Infantry Division. 9. On 9 December 1967, in Vietnam, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. 10. On 18 November 1967, also in Vietnam he again accepted NJP for failing to go at the time prescribed to his appointed place of duty. 11. On 18 January 1967, also in Vietnam, he accepted NJP for being AWOL on 11 January 1966, twice failing to go at the time prescribed to his appointed place of duty, and disobeying a lawful order from his commanding officer. 12. He was reassigned to Company C, 141st Signal Battalion, 1st Armored Division, Fort Hood, TX. 13. On 28 August 1968, he was convicted by a special court-martial of three specifications of willfully disobeying a lawful order, one specification of breaking restriction, and one specification of AWOL from 12 August to 13 August 1968. The court sentenced him to confinement at hard labor for 6 months, a forfeiture of pay for 6 months, and a reduction to the lowest enlisted grade of E-1. The convening authority approved the sentence on 18 September 1968. 14. On 27 November 1968, he was arraigned at a general court-martial on the offense of violating Article 134 of the UCMJ. Consistent with his plea, the court convicted him of the charge and one specification of wrongfully possessing marijuana and one specification of wrongfully using marijuana. The court sentenced him to a dishonorable discharge, a forfeiture of pay and allowances, and confinement at hard labor for 3 years. 15. On 12 February 1969, the convening authority approved only so much of the sentence as provided for a dishonorable discharge, a forfeiture of $97.00 pay for 6 months, and confinement at hard labor for 6 months, and except for the bad conduct discharge, he ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General for appellate review. 16. General Court-Martial Order Number 447, issued by Headquarters, III Corps, Fort Hood, TX on 29 May 1969, shows the sentence had been affirmed and the bad conduct discharge would be executed. 17. The Army discharged the applicant on 12 June 1969. His DD Form 214 shows he was discharged in accordance with chapter 11 of AR 635-200 with an under other than honorable conditions characterization of service. He was issued a Bad Conduct Discharge Certificate, and was assigned SPN 292 and RE-4. He completed 2 years, 7 months, and 24 days of active service with multiple periods of lost time. He was awarded or authorized the: * Vietnam Service Medal with 3 bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) * Marksman Marksmanship Qualification Badge with Rifle Bar 18. He provides multiple character reference letters that speak of his character, friendship, love of country, and work ethic. 19. The Army Review Boards Agency (ARBA) requested an advisory opinion in this case. The ARBA psychiatrist reviewed his case, using as a reference the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness), with revisions, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. a. The psychiatrist restated the applicant's military history to include his multiple court-martial convictions for violating the UCMJ. His offenses occurred before, during and after his tour of Vietnam. His general court-martial conviction consisted of wrongfully using and possessing marijuana. He is now applying to the ABCMR contending that his multiple infractions before being sent to Vietnam indicate he was not adapting to military culture. He states he should have been separated from the Army instead. He contends that his issues stemmed from trauma he suffered as a small child when he witnessed his friend and his friend's family burn to death in a trailer and when he recovered dead bodies from the river. b. The documentation reviewed included the applicant's ABCMR application and his military records. The Department of Veterans Affairs (VA) electronic medical record (JLV) was also reviewed. c. The applicant's military service record is void of any behavioral health related medical notes. There is no documentation that the applicant met criteria for post-traumatic stress disorder (PTSD) or any other behavioral health condition at the time of his separation from the Army. In the applicant's separation medical examination recorded on Standard Form (SF) 93 (Report of Medical History), dated 7 May 1969, the applicant denies trouble sleeping, depression, excessive worry, loss of memory or amnesia and nervous trouble of any kind; he endorses use of drugs or narcotic agents. d. There is no evidence to indicate that the applicant failed to meet medical retention standards in accordance with AR 40-501 while he was on active duty. The applicant did not provide any supporting post service medical documentation. The VA records contained no information regarding the applicant. e. Notwithstanding the applicant's self-report of being exposed to trauma prior to service, there is no evidence of PTSD or any other boardable behavioral health condition in the applicant's military records. In addition, the applicant has not submitted any post-service medical documentation [except for the letter from a social worker]. 20. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional comments and/or rebuttal. To date, he has not responded. REFERENCES: 1. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, 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. 2. AR 635-200 provides 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. c. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. d. Chapter 11, in effect at the time, stated a Soldier would be given a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special-court-martial, after completion of the appellate review and after such affirmed sentence was ordered duly executed under the Manual for Courts-Martial. When so ordered, this reason for discharge will be entered on the Soldier's DD Form 214. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proof. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) (previously referred to as the Separation Program Number or SPN) states that SPD/SPN codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "292" SPD code was the correct code for Soldiers separating under chapter 11 of AR 635-200 due to conviction by court-martial. 5. AR 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve. It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 included a list of Regular Army RE codes. * RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. A conviction by a court-martial that leads to a bad conduct discharge always results in an RE-4 regardless of the SPD changes over the years. DISCUSSION: 1. A general court-martial convicted the applicant and sentenced him to a dishonorable discharge. His trial by a court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. The convening authority approved a lesser punishment of a bad conduct discharge. 2. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed as evidenced by the issuance of the final court-martial order. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 4. The applicant's record shows the following history of misconduct before, during, and after his service in Vietnam. His service did not rise to the level required for a general or an honorable discharge. * during BCT, he accepted NJP for misconduct (disrespect) and during AIT, he went AWOL and accepted NJP for it * before arriving in Vietnam, he was convicted by a special court-martial for AWOL from 9 September to 7 November 1966 * during Vietnam, he accepted NHJP on three separate occasions for misconduct * after Vietnam, he was convicted by a special court-martial and again by a general court-martial for misconduct 5. His narrative reason for separation was assigned based on his discharge due to conviction by a general court-martial because of his misconduct. Absent his misconduct by wrongfully possessing and using illegal drugs, there was no fundamental reason to convene a court-martial and ultimately convict him. The underlying reason for his court-martial conviction was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "Court-Martial" and the appropriate SPD/SPN code associated with this discharge, at the time, was 292 which are correctly shown on his DD Form 214. The RE code associated with this type of discharge is RE-4. 6. While the applicant submitted a co-authored statement with a social worker, the statement does not identify any behavioral health condition nor did the Agency psychiatrist find any documented behavioral health condition that would support his contention that trauma he experienced before enlistment or possibly during his service in Vietnam contributed to his many acts of misconduct throughout his service. There does not appear to be a mitigating behavioral health condition that would warrant changing the applicant's discharge and associated administrative data. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017698 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017698 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2