IN THE CASE OF: BOARD DATE: 9 DECEMBER 2016 DOCKET NUMBER: AR20160001470 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 9 DECEMBER 2016 DOCKET NUMBER: AR20160001470 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 discharge characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states he was serving in Korea when he found out that his first daughter died of crib death. The Army compassionately reassigned him to Fort Lee, VA. Though he was hurting and confused at the time, he completed his initial enlistment and was honorably discharge for immediate reenlistment. a. He and his wife had another child, a daughter. He came home sick from work one morning; and discovered that his two-month-old daughter was blue. His wife had propped her bottle up and she would have drowned if he had not come home. After this, he found out that their first baby died from aspiration and not from crib death. He was almost insane after learning the true nature of his daughter's death. b. It appears that the applicant and his wife went through a divorce and a custody battle, as he states, "the court system did not work." The court awarded his ex-wife custody of their child and she would not allow him to see his daughter after the divorce. After all this happened, he decided to reenlist. c. He went to Fort Sill, OK, and while there he retained his rank; everything was going fine until someone from his ex-wife's family called him to tell him another baby died but that they did not know if it was his baby. He knows it was foolish but he left on his own; he just snapped. When he got home he found out his ex-wife had another baby with her new husband and moved into a shack that had no heat. She placed her new baby into the couch cushions where it froze to death. He turned himself in at Fort Meade, MD. He tried to get a general discharge but all they were giving was under other than honorable conditions. At that time, he was fighting for custody of his daughter; he went to court on numerous occasions. He knows he made a lot of bad decisions, but between all the pain and agony, he really thought he was doing the right thing trying to protect his daughter. Every time he found his ex-wife, she would move. The state would not help him locate his daughter but did expect him to pay child support. d. He finally got to see his daughter; when she turned 18, she came to see him. His daughter was getting married and she and her husband moved to Fort Campbell, KY. The applicant was very excited about the move. She and her husband lived off post and his daughter got a job at Taco Bell. One night, while his daughter was working, a Soldier stationed at Fort Campbell murdered her and three other Taco Bell employees. The Soldier who murdered his daughter worked at Taco Bell part-time so that he could get full access to the restaurant to rob the store. e. His son-in-law and his ex-wife had no remorse. After her death, they took his grandchildren away. They also took every penny that the military and Taco Bell paid after his daughter's death; it was a great deal of money. His ex-wife and son-in-law used the money for their own fun and purchased drugs and alcohol. His ex-wife and son-in-law got drunk at his daughter's wake, stayed in a motel a block from the funeral home, and partied constantly. He had a heart attack not long after his daughter died. f. He was on the Demilitarized Zone (DMZ) for a while when he was stationed in Korea. A Hawk missile battalion there was sprayed with Agent Orange. There was no grass or brush in this area because North Koreans would try to sneak in all the time. While he was stationed at Fort Lee and after he was released from the Army, he hurt all over, he could not concentrate, and he always felt sick. He saw a cardiologist, who was certain that he picked up Agent Orange while he was in Korea at the DMZ or somewhere else there. He included a letter from his cardiologist, which includes the same list of symptoms as those caused by Agent Orange. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 27 December 1971 * DD Form 214 (Report of Separation from Active Duty) for the period ending on 16 April 1974 * Letter from the Department of Veterans Affairs (VA), James H. Quillen VA Medical Center, dated 4 December 2015 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 was inducted into the Army of the United States on 26 May 1970. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Korea from 21 November 1970 to 1 February 1971 and was assigned to A Battery, 2nd Battalion (Hawk), 71st Artillery. He was reassigned to Fort Lee, VA, on 9 March 1971. He had all excellent conduct and efficiency ratings. 4. He was honorably discharged on 27 December 1971. 5. After a break in service, he enlisted in the Regular Army on 2 November 1972. His DA Form 20 lists his date of rank for specialist four/E-4 as 2 November 1972. 6. His record contains a DA Form 188 (Extract Copy of Morning Report), dated 30 July 1973, which shows he went absent without leave (AWOL) from his unit, Headquarters and Headquarters Battery, 1st Battalion, 14th Field Artillery Regiment, 2nd Armored Division, Fort Hood, TX, on 30 June 1973 and was listed as dropped from the rolls (DFR) on 29 July 1973. 7. His record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), which shows the applicant surrendered to military authorities at Fort Lee, VA, on 6 August 1973. 8. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCJM), on 10 August 1973 for being AWOL from on or about 30 June 1973 to on or about 6 August 1973. 9. His record contains a DA Form 3975 (Military Police Report), dated 18 December 1973. This form shows the applicant, who was assigned to Fort Sill, OK, went AWOL on 29 November 1973 and surrendered to military authorities at Fort Meade, md on 18 December 1973. The military police contacted the applicant's first sergeant (1SG) who revealed that the applicant was having serious family problems at home, and that if possible the applicant should be attached to a unit at Fort Meade, MD, since his unit had already given him leave in excess of 50 days and could not give him any more leave. 10. His record contains a memorandum published on 26 January 1974 by the commander, Battery A, 18th Field Artillery, Fort Sill OK, subject: Commander's Inquiry. The memorandum was a report of inquiry conducted into the applicant's AWOL from his unit. The memorandum states, "[the applicant] was experiencing significant personal problems. He was previously AWOL in December 1973 for the same reason. He was attempting to divorce his wife and obtain custody of their child. This was accomplished and he remarried. He also had significant problems with his pay. This problem was being looked into when he departed AWOL." 11. His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 28 January 1974, which shows his commander initiated a flag against him for departing AWOL on 26 January 1974. 12. His record contains a letter that his commander wrote to his parents, dated 4 February 1974. This letter informed the applicant's parents that he departed AWOL from his unit and urged them to encourage the applicant to surrender to local civil or military authorities. His commander stated that he was unaware of any problems that may have caused the applicant to go AWOL, but if problems did in fact exist, the commander would endeavor to assist the applicant fully. 13. His record contains a DA Form 188, dated 25 February 1974, which shows the applicant departed AWOL on 26 January 1974 and was listed as DFR on 24 February 1974. 14. His record contains a DA Form 3975, dated 5 March 1974, which shows he surrendered to military authorities at Fort Meade, MD, on 5 March 1974. 15. His record contains a Standard Form 98 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 6 March 1974. These forms show he received a separation physical and the examining physician noted he was medically qualified for separation. 16. His record contains a charge sheet, dated 7 March 1974, showing court- martial charges were preferred against him for being AWOL from on or about 26 January 1974 to on or about 5 March 1974. 17. He consulted with legal counsel on 15 March 1974. Counsel fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offense(s) thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at this time; and the maximum permissible punishment if found guilty). a. After consulting with counsel, the applicant voluntarily requested discharge for the good of the Service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and he acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person. He acknowledged he had been advised of the implications attached to his request, and that by submitting his request for discharge, he acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorize the imposition of a bad conduct or dishonorable discharge. Moreover, he stated that that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. b. He also acknowledged understanding that, if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He also acknowledged that he was advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged understanding that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. c. The applicant elected to submit a statement on his own behalf. 18. The applicant provided the discharge authority two statements in his own behalf, wherein he stated: a. He only lived with his wife for about two months before he was drafted into the Army on 26 May 1970. On 15 January 1971, his wife, now ex-wife, gave birth to their first child. He was in Korea at the time. The child lived for 15 days and then died. The Army sent him home on emergency leave. When he arrived home, he received several different stories about his child's death and decided to investigate the matter on his own. He spoke to the doctors who examined his daughter's body and found out that she died from asphyxiation. She was given too much milk and it got into her lungs. His wife did not seem the least bit depressed; she was only worried about what he would do to her. b. The Army granted him a compassionate reassignment to Fort Lee, VA. About a week or two after his assignment to Fort Lee, his wife move there and they lived off post in Petersburg, VA. During this time, he found out what his wife was really like; they only lived together for approximately two months before he was drafted. She would not clean house or cook even one meal a day. She spent about 20 hours a day in bed. When he came home for lunch, she would be in and when he came home from work in the afternoon she would still be in bed. He did the housework himself most of the time to try to get her to do something, but she would not. She was 7 months pregnant when his term of service expired. He wanted to stay in the Army, but she wanted to go home, so out of fear for his child, he got out of the Army and moved back to Bristol, VA. c. He got a job with no problem and rented a house. She gave birth to their child on 11 February 1973. One morning, he decided not to go to work. He went back home instead to see how his wife was caring for their child. When he arrived, he found the baby's bottle propped up on a pile of diapers; his wife had gone back to bed. At that time, the infant was only a month old so she was not strong enough to roll away from the bottle or get it out of her mouth. She had taken about half the bottle, she was already turning bluish color, milk was running out of her nose and mouth, and she was unable to breathe. He got the baby up and got her back to normal. He then work up his wife and showed her what happened; she just turned over and went back to sleep. He took the child to his parent's house, consulted with a lawyer, and got divorce proceedings underway. There have been many child custody hearings, but because of Virginia laws, the mother always assumes custody. d. When he reenlisted into the Army on 2 November 1972, he was told an allotment could not be made to his wife because they were separated. He paid as often as he could; child support payments were set at $25 a week. He got into arrears and went to see a military lawyer. The lawyer informed him that the Army should be paying his wife, and he got the payments for his wife straightened out. e. He went home from Fort Hood, TX, on many occasions for court hearings and over the welfare of his child. During this time he found out she was pregnant; the child was not his. A married man got her pregnant. He ended up AWOL because he used up all of his leave and it was costing him everything he earned to travel so often. He was assigned to Fort Sill, OK, but he was still too far away from home to properly take care of his problems. f. His chain of command at Fort Sill, OK, put him on excess leave. He was told not to call in; he was told to get a job, which he did. About 50 days later, he received a letter. His unit had a change of command and he was now considered AWOL. He turned himself in at Fort Meade, MD. After he explained his situation all charges were dropped. g. He had to go to court on 4 January 1974 because his wife gave birth to an illegitimate child. The child had his name and all the bills for the child were in his name. After going to court, the identity of the child's father was discovered and she put the child up for adoption, but still wanted to keep his child. h. They went back to court over the custody of his child, and the judge awarded his ex-wife custody. However, the judge did inform her that her morals were very low and if her behavior continued the applicant could be awarded custody. i. He noted that he was currently in arrears for child support because he had not received a paycheck since October 1973. The court gave him a 90 day suspended sentence over it the first time with a year probation. He also had doctor bills and hospital bills he must pay. He did not have any hard feelings toward the Army. He knew the Army tried to help him as much as possible. His ex-wife was now showing signs of being pregnant again. If he received a discharge, he would be able to pay his bills and increase his chances of gaining custody of his child. After everything that had happened, he felt the only way he could fix his problems was to become a civilian. j. He really appreciated all the Army tried to do for him. The Army had been very cooperative with him regarding his personal problems, but he felt he would only be able to resolve his problems if he was discharged. However, he asked that he receive a general discharge. He truly that that the only thing he was guilty of was trying to protect his daughter. 19. On 27 March 1974, the commander of the Personnel Control Facility, Fort Meade, MD, recommended disapproval of the applicant's request for a general discharge. The commander stated that the applicant served a total of 32 months on active duty. He reenlisted on 2 November 1972 and completed 13 months of his present 4-year enlistment. The applicant served 2 months in Korea and returned home on emergency leave. The applicant had no awards or decorations, he received punishment under Article 15 for one incident of AWOL, and he was currently under charges for 38 days of AWOL. The commander felt that the applicant allowed his personal affairs to override his desire to become a productive member of the military. In addition, a review of his length and character of service during his current enlistment did not warrant separation under honorable conditions. The commander recommended the applicant's separation from the service with an Undesirable Discharge Certificate. 20. On 4 April 1974, the discharge approval authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10; directed that applicant's reduction in rank grade from specialist four/E-4 to the lowest enlisted grade; and directed he be furnished an Undesirable Discharge Certificate. 21. The applicant was discharged on 16 April 1974 under the provisions of Army Regulation 635-200. His DD Form 214 shows he was discharged in the rank/grade of private (PVT)/E-1 and reflects his date of rank as 4 April 1974. This form also shows he received an under conditions other than honorable characterization of service; he completed 1 year, 2 months, and 16 days of net active service during the period covered; and he had 89 days of lost time. 22. The applicant provided a letter from the James H. Quillen VA Medical Center, dated 4 December 2015. The letter states: You have extensive coronary artery disease with significant ischemic cardiomyopathy/congestive heart failure and frequent ventricular arrhythmias (ventricular tachycardia). Your most recent nuclear stress test shows extensive areas of scar from prior myocardial infarctions and the Echo shows weakened heart pumping function with Ejection fraction 20-25%... Based on your overall cardiac history you are not nor ever will be a candidate for gainful employment. 23. There is no indication that he applied to the Army Discharge Review Board to request an upgrade of his characterization of service within that Board's 15 year statute of limitations. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (VA) benefits. b. 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. c. 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. DISCUSSION: 1. The evidence of record indicates the applicant had an extensive history of AWOL, which resulted in one Article 15 and court-martial charges being preferred against him. There is no indication that he committed any other type of infraction. 2. The evidence of record also shows that while the applicant did continually depart AWOL, his chain of command was very aware that this was related to issues in his personal life involving his divorce proceedings and an ongoing custody battle for his daughter. The evidence also shows that his unit attempted to help him by placing him on the maximum amount of excess leave possible and attempting to have him attached to a unit at Fort Meade, MD. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The evidence shows that after receiving the advice of legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He did later attempt to withdraw this request, but his request was denied. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160001470 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001470 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2