BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150018987 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: 4 May 2017 DOCKET NUMBER: AR20150018987 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: 4 May 2017 DOCKET NUMBER: AR20150018987 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 to upgrade his under other than honorable conditions discharge to honorable. 2. The applicant states, in effect: a. He was drafted into the Army on 22 July 1966 and was sent to Fort Jackson, SC. He completed basic combat training (BCT), two weeks of leadership school, and eight weeks of advanced individual training (AIT) for an Infantry military occupational specialty (MOS). He qualified as expert on the M-14 rifle, earned a Sharpshooter Marksmanship Qualification Badge on the .45 caliber pistol, and received training on the 81 millimeter mortar. He was placed on orders for Vietnam and went home on leave for Christmas. b. He returned to Fort Jackson after a week, and was getting ready to ship out when the officer-in-charge (OIC) told him his orders had changed. This OIC seemed to hate him and called him a "glass of buttermilk." The applicant remained at Fort Jackson until his discharge on 31 October 1967. c. On a dark and rainy night, at about 9 p.m. in June 1967, a jeep came to his barracks. He had been placed there without orders and was now being moved again without what he asserts was proper authority. The driver took him to a remote part of Fort Jackson and, as the driver dropped him off, he wished the applicant luck. d. The next morning, he saw two other Soldiers there who were getting ready to go home on leave. They kept telling him to be careful, and advised him to keep a bunk adapter leg under his mattress for protection. As he prepared to shine his boots, over a dozen paratroopers came in; they looked like they were about to ship out. They told him they were "going to kill [him]," and, as he reached for the bunk adapter leg under his mattress, they began to beat him. The assailants knocked him to the floor, punched his face, kicked him in the ribs and back, and then stomped his ankle. A big Soldier came over and picked him up; he told the applicant to run for the door, and not stop. A Soldier who appeared to be in charge of his assailants asked the big Soldier what he was doing. The big Soldier replied they were killing the applicant, to which the assailant replied, "It's what we were sent in here to do." e. He incurred a severe concussion, seven broken ribs, a broken ankle, and a broken jaw. He does not know why these men assaulted him, but he has an idea. The applicant wanted to add he still has no memory of going to the military hospital. He "came to" in the hospital and saw a doctor standing over him. The doctor said he was very lucky. The applicant's head and ribs were tightly wrapped with bandages. His complete memory of the attack did not come back for many years. f. He finds it very strange he was moved twice before being attacked. He also wonders why the military police never came and asked him what happened after he came out of his coma. He asserts this a question only the Army can answer. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 31 October 1967. 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. On 20 September 1965, the applicant underwent a pre-induction physical, during which the examining physician noted the applicant had had a thoracotomy (surgical incision into the chest wall) at age 6 due to bronchiectasis (a condition where the lung's airways become damaged so that it is hard to clear mucus). Additionally, he was found to have situs inversus (a congenital condition in which major organs are located opposite of their normal positions). He was nonetheless cleared for service. 3. The applicant was inducted into the Army of the United States on 22 July 1967. He completed BCT on or about 6 October 1966 at Fort Jackson, after which he was assigned to another unit at Fort Jackson for MOS 11C (Indirect Fire Infantryman) AIT. 4. DA Form 8-274 (Medical Condition - Physical Profile Record), dated 6 December 1966, indicated a medical board had found the applicant's conditions related to postoperative right thoracotomy and situs inversus required the issuance of a permanent level 3 physical profile for the physical capacity (P) body system. He was otherwise found to be medically qualified for duty with permanent assignment limitations. [A physical profile is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: "1" meaning a high level of fitness; "2" indicates some activity limitations are warranted, "3" reflects significant limitations, and "4" reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Profiles can be either permanent (P) or temporary (T).] 5. His DA Form 20 (Enlisted Qualification Record) shows he was first reassigned to AIT for MOS 05B (Radio Operator) on or about 3 January 1967; then once more reassigned to AIT for MOS 70A (Clerk), effective 16 January 1967. 6. On 26 January 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for 23 and 24 January 1967. Section V (Continuation), DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ) shows, in effect, when the applicant returned from AWOL, he did not go to his assigned unit. Instead, he went to another unit, where he told everyone he was awaiting a hardship discharge. 7. He departed his Fort Jackson unit in an AWOL status on 30 January 1967 and was dropped from Army rolls on 28 February 1967. He returned to military control on 22 March 1967. 8. On 20 April 1967, he was convicted by a special court-martial for one specification of AWOL from 30 January to 22 March 1967. Special Court-Martial Order Number 71, dated 22 April 1967, issued by Headquarters, 4th Training Brigade, reflects that the court sentenced him to confinement for 5 months, forfeiture of $64 per month for 5 months, and reduction to the lowest enlisted grade (private (PV1)/E-1). On 22 April 1967, the convening authority approved only so much of the sentence that provided for confinement for 5 months, forfeiture of $50 per month for 5 months, and reduction to PV1. He was placed in the Fort Jackson stockade to serve his sentence. 9. Special Court-Martial Order Number 77, dated 2 May 1967, issued by Headquarters, 4th Training Brigade, suspended the unexecuted portion of his sentence to confinement, as well as only so much of the forfeiture in excess of $25 per month for 5 months. The period of the suspension was 4 months, unless sooner vacated. He was released from the Fort Jackson stockade. 10. He accepted NJP on two more occasions: * 22 May 1967, for being AWOL from 20 to 21 May 1967 * 8 June 1967, for failing to go at the time prescribed to his appointed place of duty 11. The applicant's available military service record includes both medical and dental records. Both are void of any indication he was hospitalized, in or around June 1967, for a severe concussion, broken ribs, ankle, and/or jaw. Additionally, his DA Form 20 contains no entries showing he was in an in-patient status for any period while on active duty. 12. He again departed his Fort Jackson unit in an AWOL status on 27 June 1967 and was again dropped from Army rolls on 26 July 1967. He returned to military control on 21 September 1967. He was placed in confinement on 22 September 1967. 13. Special Court-Martial Order Number 189, dated 23 September 1967, issued by Headquarters, 4th Training Brigade, stated the unexecuted portion of the sentence to confinement for 5 months was to be duly executed and the applicant was to be confined at the Fort Jackson stockade. 14. On 5 October 1967, the applicant consulted with counsel (a military lawyer) and, subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). 15. In his request for discharge, he indicated he: * was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration * understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * elected not to submit a statement in his own behalf 16. While both his company and battalion commanders recommended disapproval of his request, the brigade commander recommended approval, noting the applicant had been previously administered NJP, court-martialed, and given a suspended sentence. Despite continual attempts at leniency and rehabilitation, the applicant did not show he would be capable of becoming a productive member of the Army. 17. On 16 October 1967, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an Undesirable Discharge Certificate. 18. Special Court-Martial Order Number 209, dated 25 October 1967, issued by Headquarters, 4th Training Brigade, remitted the unexecuted portion of the approved sentence promulgated by Special Court-Martial Order Number 71, dated 22 April 1967. 19. The applicant underwent a separation physical on 27 October 1967. It is void of any mention of a hospitalization in or around June 1967, or at any point during his active service. 20. His DD Form 214 shows he was discharged, on 31 October 1967, under other than honorable conditions, under the provisions of AR 635-200, chapter 10. This form also shows he completed 8 months of net active creditable service. He was not awarded or authorized any awards or decorations. He had lost time for the following periods: 23 through 24 January 1967, 30 January through 1 May 1967, 20 May 1967, and 27 June through 30 October 1967. 21. The applicant petitioned the Army Discharge Review Board (ADRB) on 22 September 1969 to upgrade the character of his service. a. He included a self-authored statement, in which he essentially stated: * he requested a reclassification of his "4-F status" because he felt, when he was discharged from the Army, he was immature and not fully aware of what he was doing [Between 1948 and 1976, the Selective Service had five statuses for draft registrants, with a number of subcategories. A status of "4-F" meant the registrant was not qualified for military service. The Selective Service no longer uses these statuses.] * when he was in Infantry AIT; his training sergeant told his group they were all going to Vietnam; he got scared and went on sick call * he successfully fooled his doctors and was able to have his orders changed so that he would not be going to Vietnam * at first, he thought this is what he wanted, but after returning from home leave, he tried to get his orders changed * he had to see the same doctors who had previously had his orders changed, and they denied his request; he considered telling the doctors what he had done to influence their earlier decision, but felt ashamed * at the time of his ADRB application, he had been out of the Army for about 2 years; he still could not get this situation out of his mind * while on active duty, he starting going AWOL before he really understood what he was doing * he accepted an undesirable discharge because he thought he would be "getting back at them for not [him] letting go to Vietnam" * at the time of his application to the ADRB, he was about to finish a 2-year business degree, and wanted to reenter the Army to do what he feels he should have done earlier b. On 19 December 1969, the ADRB denied his request. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The available evidence shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10, with an under other than honorable conditions discharge. Discharges under this chapter are based on a voluntary request for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation appear to have been met, and that his rights were fully protected throughout the separation process. 2. The applicant asserts he was assaulted and, because of this assault, he suffered severe injuries, was hospitalized, and was in a coma. The evidence of record, however, fails to affirm this assault took place. While the absence of evidence does not necessarily mean it never happened, the applicant fails to show the relevance of the assault to the misconduct that led to his adverse separation. Additionally, aside from his assertions, he provides no proof of the assault or his hospitalization. 3. What the evidence of record does reflect is that the applicant accepted NJP on three occasions, and a special court-martial convicted him once; all for offenses related to unauthorized absence. At the point where he requested separation under chapter 10, AR 635-200, he apparently faced court-martial charges once again for AWOL. Based on his record of indiscipline, the applicant's service does not appear to have been consistent with the standards of acceptable conduct and performance of duty for Army personnel associated with 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) AR20150018987 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018987 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2