BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20160000114 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: 9 May 2017 DOCKET NUMBER: AR20160000114 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 to warrant amendment of the ABCMR's decision in Docket Number AC77-02630, dated 16 November 1977. ______________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: 9 May 2017 DOCKET NUMBER: AR20160000114 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 reconsideration of his earlier request to upgrade his dishonorable discharge. 2. The applicant states, in effect: a. He does not believe his character of service should have been dishonorable. He regrets his actions and the outcome, but he willingly served in Korea and Vietnam. b. He notes he was not drafted, but enlisted the Army, and he was very excited to serve. He entered active duty at age 17, and things went very well. His leaders made him a team leader, and he was quickly put in charge of training other Soldiers. He started at Fort Knox, KY, and later moved to Fort Jackson, SC, where he became a mail clerk. From there, he was sent to Fort Lewis, WA, and on to Korea; he was assigned to the 31st Infantry Brigade. c. From Korea, he was sent to interpreter school, and then to jump training in Okinawa. At that point, he thought he would return to Korea, but was sent instead to Cam Ranh Bay, Vietnam. He served there with the 1st Brigade of the Cavalry, after which he returned to Okinawa to train a company of airborne infantry special forces. d. Following his time in Okinawa, he returned to Korea, and was assigned to the 7th Infantry, with a further attachment to the 2nd Infantry. In the 2nd Infantry, he participated in Demilitarized Zone (DMZ) Hunter-Killer patrols. At that point, he was an E-5, and placed in charge of 11 men. He and his team went on 23 Hunter-Killer patrols, and every man came back. They all fought hard for their country. e. He continued to train men, at the "M gym school," (i.e., IMJIN) and, as time went on, he ran into a couple of officers with whom he bumped heads. He is not sure what happened, but looking back, he is very saddened by all of the circumstances and very sorry for what happened. An officer told him the only way he was going home was in an aluminum box [apparently referring to a military coffin]. That was when the trouble started; he was too young to handle the pressure. All he thought he was doing at the time was protecting himself and staying alive. There was so much pressure, and, he found himself facing life in prison at [the U.S. Disciplinary Barracks], Fort Leavenworth, KS. He states, "It was by the grace of God that I was home in 9 months." f. Just like other Vietnam Veterans, it was difficult for him to adjust once he returned home. His nerves were shot, and he received treatment from Dr. W, as well as daily medication. Since then, he has grown to be a better man. His service, and the leadership skills he developed, equipped him to be the man he has become. After his discharge, he married, raised three wonderful children, and has several grandchildren. He is a licensed minister and a licensed insurance agent. He mentors young men and has served as a chaplain in the jail system. g. He is currently ill and is being treated for diabetes; his left leg was amputated. He also is receiving treatment for stage-4 prostate cancer. It would mean the world to him and his family if the Board granted his request. 3. The applicant provides a letter of support, dated 19 October 2015, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 December 1968. 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 AC77-02630 on 16 November 1977. 2. The applicant's current request for reconsideration includes new evidence in the form of a letter of support. It warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 14 July 1966 at 18 years of age. Following completion of basic combat training (BCT) at Fort Knox, and advanced individual training (AIT) at Fort Jackson for military occupational specialty (MOS) 70A (Clerk), he was assigned to the 31st Infantry Regiment, 7th Infantry Division, Korea. 4. He arrived in Korea on or about 22 December 1966. His DA Form 20 (Enlisted Qualification Record) shows his duty MOS in Korea was 11B (Light Weapons Infantryman). 5. While in Korea, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 27 February 1967, for sleeping at his post while performing duties as a sentinel. 6. He was tried by a special court-martial on 28 June 1967. Special Court-Martial Order Number 15, dated 3 July 1967, issued by Headquarters, 3rd Brigade, 7th Infantry Division, shows: a. Two specifications of assault: * striking First Sergeant (1SG) EC with a bunk adapter; pled not guilty, found guilty * striking Specialist Four FGH in the face with his fist; pled not guilty, found not guilty b. Sentence was adjudged on 28 June 1967, and consisted of confinement at hard labor for 45 days, and forfeiture of $64 per month for 4 months. c. The court-martial convening authority approved only so much of the sentence as provided for 45 days confinement at hard labor and forfeiture of $50 per month for 4 months. Execution of the confinement was suspended, unless sooner vacated, for a period of 45 days, and the forfeiture was suspended for 2 months. 7. The applicant accepted NJP 3 more times between July and November 1967: * 31 July 1967, disrespect toward Second Lieutenant RJM * 2 November 1967, absent from his appointed place of duty: Reveille * 28 November 1967, absent from his appointed place of duty: bed check 8. He was tried by a general court-martial on 12 January 1968. General Court-Martial Order Number 3, dated 25 February 1968, issued by Headquarters, 7th Infantry Division, shows: a. Four violations of the UCMJ: * striking his superior officer * striking his superior noncommissioned officer * resisting arrest by an Armed Forces Policeman * striking YCH, and striking and biting Private First Class FER, an Armed Forces Policeman b. The sentence was adjudged on 12 January 1968, and consisted of a dishonorable discharge, confinement for 4 years, and forfeiture of all pay and allowances. The convening authority approved the sentence on 25 February 1968. 9. While he was in the Eighth U.S. Army Stockade, he was again tried by a general court-martial, on 16 April 1968. General Court-Martial Order Number 6, dated 27 May 1968, issued by Headquarters, 7th Infantry Division, shows: a. Four violations of the UCMJ: * willfully disobeying an order from Captain CDP; pled guilty, found guilty * assaulting Private E-2 JHW by striking him twice in the face with his fist; pled guilty, found guilty * assaulting 1SG HB by striking him on the shoulder with a broom stick; pled not guilty, found guilty * using disrespectful language toward 1SG HB; pled not guilty, found guilty b. Sentence was adjudged on 16 April 1968, and consisted of a dishonorable discharge, confinement for 2 years, and forfeiture of all pay and allowances. c. The convening authority approved the sentence on 27 May 1968, and indicated the record of trial was being forwarded to The Judge Advocate General for review. The accused was to be confined at the U.S. Disciplinary Barracks, Fort Leavenworth. 10. His available service record is void of any indication he served in Vietnam. Additionally, there is no documentation concerning the appellate process through the U.S. Army Court of Military Review or Court of Military Appeals. 11. The applicant was dishonorably discharged on 9 December 1968. His DD Form 214 shows he completed 1 year, 3 months, and 5 days of net active creditable service. He also had 418 days of lost time due to confinement. He had no awards or decorations authorized. The separation authority was Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Dishonorable and Bad Conduct Discharge), paragraph 11-1 (DD Form 260A (Dishonorable Discharge)). 12. General Court-Martial Order Number 551, dated 30 December 1968, issued by Headquarters, U.S. Disciplinary Barracks, stated only so much of the sentence promulgated by General Court-Martial Order Number 6, dated 27 May 1968, as provided for a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months, was affirmed pursuant to Article 66, UCMJ. The provisions of Article 71(c) had been complied with, and the sentence was to be duly executed. The applicant was to be confined at the U.S. Disciplinary Barracks. [Article 66, UCMJ requires each Judge Advocate General to establish a Court of Military Review whose purpose is to review court-martial cases. Article 71(c) states, if a court-martial sentence includes a dishonorable discharge, it cannot be executed until a final judgment has been made as to the legality of the proceedings. Such a judgment is considered final after the Court of Military Review completes its review.] 13. A Certificate of Parole, dated 4 April 1969, shows the applicant was granted parole effective 3 May 1969 until 11 July 1971. 14. A memorandum, dated 3 August 1970, subject: [Applicant], stated the Secretary of the Army directed the remittance of the unexecuted portions of the applicant's sentence of confinement. He was reflected as being on parole from the U.S. Disciplinary Barracks. 15. On 11 February 1977, the applicant petitioned the ABCMR to upgrade his dishonorable discharge. In a self-authored statement, he wrote, in effect: * he noted he was 17 years of age when he entered active duty, and described his life prior to his enlistment; he claimed he did well during BCT and AIT * he was sent to Korea, and indicated two sergeants had testified at his trial that he did an excellent job for them as a supply clerk; he left that duty to become an acting sergeant and a squad leader in a Rifle Platoon * he acknowledged he had been convicted by a special court-martial for fighting his 1SG; he was charged with attacking the 1SG with a bunk adapter, but, actually, he had taken the bunk adapter away from the 1SG * he stated at his trial that he was sorry, and volunteered to go to Vietnam to prove himself; he was convicted and his punishment included restriction for 60 days, during which he was given numerous undesirable duties * he was sent on observation or "hunt and kill" patrols, during which he was placed in charge of 12 men, some of a higher rank * he was around enlisted men in their late teens, and officers in their early 20's; it was like a bunch of high school kids running the war without adequate supervision; he applied for a transfer, but it was denied * he got into a fight with a Korean taxi driver in December 1967; he wore dark glasses the next day to hide his bruises * a lieutenant snatched them off his face when he (the applicant) refused to remove them; he hit the lieutenant * he noted that, during his confinement, he received no psychiatric counseling; he also asked to see a chaplain, but his request was denied * he felt his counsel was in-experienced, and he did not understand the legal procedures being followed in his case * after he was sent to Fort Leavenworth, his father contacted an attorney, and they were able to reduce his sentence; he was put on probation, and remained on good terms with his probation officer * he stayed out of trouble, completed 3 years of college, and hoped to be a minister some day 16. On 16 November 1977, the Board denied his request, noting the offenses cited in the applicant's self-authored statement were just a part of the reason for his dishonorable discharge. In addition, while there was evidence his failure to obey an order from a superior officer was mitigated by his fear of mistreatment, his assaults on the 1SG and the enlisted Soldier were unjustified. His records generally showed a pattern of violent behavior. This pattern was ultimately responsible for his dishonorable discharge. 17. The applicant provides a letter of support from his pastor, who essentially states the applicant is a member of his church and has worked in several capacities over a 10-year period. He is an ordained Elder who has an amiable personality and is a very willing worker who mentors young men. REFERENCES: 1. The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial. 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 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, in effect at the time, prescribed policy and procedures for enlisted separations. a. An honorable discharge is a separation with honor. It is conditioned upon proper military behavior, and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. (1) Notwithstanding the criteria listed below, when disqualifying entries are outweighed by subsequent honest and faithful service over a greater period of time or the nature of a conviction, in the opinion of the officer effecting discharge, is not too serious, and the remainder of the service has been honorable, an honorable discharge can be granted. (2) To receive an honorable discharge, the individual had to meet the following qualifications: * conduct ratings of at least "Good" * efficiency ratings of at least "Fair" * not convicted by a general court-martial * not convicted more than once by a special court-martial b. 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. A dishonorable discharge is issued pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. 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 evidence of record shows the applicant was charged with offenses punishable under the UCMJ with a punitive discharge. A general court-martial found him guilty of the specifications charged, and directed he receive a dishonorable discharge. This type of court-martial was warranted given the gravity of the offenses charged. Additionally, his conviction and discharge were effected in accordance with applicable laws and regulations, and his character of service appears appropriate based on the misconduct for which he was convicted. 2. Although his record is void of documentation showing his appellate review, it appears, nonetheless, that a review was completed. General Court-Martial Order Number 551, dated 30 December 1968, confirmed his sentence had been affirmed pursuant to Article 66, UCMJ, and indicated there had been compliance with the provisions of Article 71(c). 3. The applicant offers argument and evidence that he has changed and is now a contributing member of society. While significant, this evidence does not equate to mitigation for the offenses he committed and for which he was convicted. 4. It appears all requirements of law and regulation were met and his rights were fully protected. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000114 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000114 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2