ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160014303 APPLICANT REQUESTS: Reconsideration of his earlier request for an upgrade of his discharge under other than honorable conditions (UOTHC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored Statements and Letter, dated 25 May 2016 * DA Form 19-24 (Statement), dated 5 October 1967 * El Paso Police Department Complaint Report, dated 27-28 December 1967 * El Paso Police Department Transfer, dated 27 December 1967 * DA Form 1049 (Personnel Action), dated 10 January 1968 * Supplemental Offense Report – Police Department, dated 11 January 1968 * Certificate of Magistrate, The State of Texas, County of El Paso, dated 11 January 1968 * El Paso Police Department – Warning by Magistrate, dated 11 January 1968 * two witness statements * Case Summary/Disposition, dated 12 January 1968 * Federal Bureau of Investigations Record 305 265 G, dated 19 January 1968 * Mental Hygiene Certificate, dated 13 February 1968 * Corrections Officer Statement, dated 17 February 1968 * Separation Acknowledgement letter, dated 19 February 1968 * DD Form 493 (Extract of Military Records of Previous Convictions), dated 21 February 1968 * Discharge Recommendation, dated 6 March 1968 * Separation Approval Authority letter, dated 21 March 1968 * Debarment letter, dated 3 April 1968 * DA Form 3082-R (Statement of Medical Condition), dated 3 April 1968 * Medical record extracts * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA Form 20 (Enlisted Qualification Record) extract * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * Department of Veterans Affairs (VA) Form 07-3101(Request for Information), dated 17 June 1968 * DD Form 2870 (Authorization for Disclosure of Medical or Dental Information), dated 25 May 2016 * Army Board for Correction of Military Records (ABCMR) Docket Number AR20080017497 extract, undated * ABCMR Docket Number AR20150009800, dated 5 May 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR200817497 on 27 January 2009 and Docket Number AR20150009800 on 5 May 2016. 2. The applicant states: a.  He was wronged when he came back from defending his country in Vietnam for 11 months and 27 days. He was a proud Soldier and glad to serve his country. b.  He went to Fort Bliss, TX, and he lost his ring finger on 3 July 1967 while on duty. c. On 26 October 1967, he met First Lieutenant (1LT) B____ J. S____, who did everything he could to have him discharged. d.  He was charged with assault for attempting to fistfight W____ D. T____, a sergeant in the grade of E-6. He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice. He was reduced in rank/grade from private first class (PFC)/E-3 to private (PVT)/E-2, fined $10.00 for 1 month, restricted to post, and given 14 days of extra duty. e.  He was confined to the stockade and he was sent back to his company after 29 days. f.  On 11 January 1968, he was arrested by the El Paso County Police Department for breaking and entering a vehicle. 1LT B____ J. S____ left him in the El Paso County Jail for 79 days. On 3 April 1968, two military policemen took him back to Fort Bliss where 1LT B____ J. S____ had his court-martial charges ready for being absent without leave (AWOL), resulting in an undesirable discharge. g.  1LT B____ J. S____ showed he could have him discharged from the Army. 3. On 7 September 1965, the applicant enlisted in the Regular Army for a period of 3 years. 4. He provided a statement from PVT G____ A. T____, dated 5 October 1967, who stated he was approached by the applicant and another Soldier on either 23 or 24 September 1967 at approximately 1230 to 1300 hours and asked if he wanted to buy a club card that would get him into a nightclub. He purchased the card from the applicant for 25 cents. The applicant added a handwritten statement, stating he was at William Beaumont Army Hospital, Fort Bliss, TX, from 19 September 1968 (should read 1967) to 25 September 1968 (should read 1967) for an infection in his ring finger. He added he had his finger torn off on 3 July 1967 in the line of duty. 5. His medical record extracts contain a Standard Form 600 (Chronological Record of Medical Care) covering the period 19 June 1967 to 25 September 1967 that shows he was seen at the U.S. Army Reception Station, Fort Bliss, on 19 and 25 September 1967 for an infection relating to his missing finger. There is no record of hospital admission. 6. His records contain two additional statements, dated 5 October 1967, from: a.  PVT H____ M. H____, who stated the applicant and another Soldier approached him on 23 September 1967 at approximately 1230 hours and the applicant asked him if he wanted to buy a "Maverick Club" card. The applicant told him he could go down to a bar and drink with it. He said he purchased the card from the applicant for 25 cents; and b.  PVT S____ A. M____, who stated he was approached by the applicant on either 23 or 24 September 1967 at approximately 1300 hours, who asked if he wanted to buy a "Maverick Club" card. The applicant told him he would not be checked at this club for an identification card if he had the card. He purchased the card from the applicant for 25 cents. 7. On 11 October 1967, he accepted nonjudicial punishment for violating U.S. Army Training Command Regulation 210-7, paragraph 4d, to wit: "No member of the permanent party will sell any item or service to a trainee for personal gain, present any third party in the sale of items or services to trainees, or encourage purchases of items or services by trainees from any specific non-governmental source." His punishment consisted of reduction in rank/grade from specialist four/E-4 to PFC/E-3. 8. On 2 November 1967, he accepted nonjudicial punishment for assaulting Sergeant First Class W____ D. F____ by threatening to strike and engage in a fistfight. His punishment included reduction in rank/grade from PFC/E-3 to PVT/E-2 which was suspended for 60 days, forfeiture of $10.00 per month for 1 month, restriction to the company area for 14 days, and extra duty for 14 days. 9. The DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 5 December 1967, shows his duty status was changed from present for duty to AWOL per the Morning Report for 4 December 1967. 10. On 2 January 1968, he was dropped from the unit rolls. 11. He provided documents from the El Paso Police Department that show he was charged with breaking and entering a vehicle from which a set of drums were stolen. He sold the stolen drums to Mr. L____ C. N____ for $12.00 on 30 December 1967. 12. The Personnel Action form, dated 10 January 1968, shows his conduct and efficiency ratings for the period 26 October 1967 to 4 December 1967 were unsatisfactory. The applicant added a handwritten statement, stating he was not guilty and he was in the El Paso County Jail from 11 January 1968 to 3 April 1968. 13. El Paso Police Department records show he was arrested on 11 January 1968 and he was taken before a judge where he was given a magistrate warning and interrogated. He submitted a signed statement on the same date, admitting to the offenses of vagrancy, burglary of an automobile, and AWOL. 14. The Report for Suspension of Favorable Personnel Actions, dated 15 January 1968, shows his duty status was changed from dropped from the rolls to returned to duty. He was placed in the stockade pending court-martial action. 15. Headquarters, U.S. Army Training Center, Air Defense, Special Court-Martial Order Number 4, dated 3 February 1968, shows he pled guilty and was found guilty of being AWOL from on or about 4 December 1967 until on or about 12 January 1968 and from on or about 13 January 1968 until on or about 15 January 1968. He was sentenced to confinement at hard labor for 6 months, forfeiture of $64.00 per month for 6 months, and reduction to the grade/rank of PVT/E-1. His sentence was adjudged on 2 February 1968. 16. His Mental Hygiene Certificate, dated 13 February 1968, shows: a.  honest attempts were assertedly made at rehabilitation during which many violations were allowed to go unpunished, all to no avail; b.  the applicant alleged he had not experienced difficulty in the Army prior to the loss of his ring finger and since that time he admittedly violated numerous orders and regulations and in general behaved irresponsibly, all because of what he described as the improper and unjust way in which military authorities treated him since his injury; c.  he had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels; and d.  he was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. 17. On 19 February 1968 after consulting with counsel, the applicant waived consideration and a personal appearance before a board of officers and submitted statements in his own behalf. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions. He further understood with the issuance of a discharge UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. 18. On 6 March 1968, the Headquarters and Headquarters Company Commander recommended the applicant's appearance before a board of officers under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness, and Unsuitability), paragraph 6a(1), to determine whether he should be discharged before his expiration of term of service. The commander recommended his discharge due to habits and traits of a character manifested by repeated commission of offenses. The commander also indicated the applicant: a.  had various assignments and supervisors and his performance of duty and conduct were unsatisfactory, and his performance was characterized by intentional shirking of his duties and by behavior rendering him repeatedly subject to punitive action; b.  had offenses that had become more frequent and progressively more serious; c.  had a total disregard for military discipline and his misconduct and unwillingness to perform any duty contributed to the basis for the proposed action to separate him; and d.  his superiors and psychiatric examiner concurred that further rehabilitation efforts would be useless. 19. Headquarters, U.S. Training Center, Air Defense, Special Court-Martial Order Number 11, 27 March 1968, ordered remission of the unexecuted portion of his sentence to confinement at hard labor for 6 months and forfeiture of $64.00 per month for 6 months effective 3 April 1968. 20. On 21 March 1968, the separation authority approved his discharge under the provisions of Army Regulation 635-212, paragraph 5b, and directed the issuance of an Undesirable Discharge Certificate. 21. On 3 April 1968, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 2 months, and 26 days of creditable active service, including 11 months and 27 days of foreign service in Vietnam. He had 121 days of lost time during the period 4 December 1967 to 1 January 1968 and 2 January 1968 to 2 April 1968. 22. On 27 January 2009 in ABCMR Docket Number AR20080017497, the ABCMR denied his request for an upgrade of his discharge, citing the type of discharge and the reason for his separation were appropriate considering all the facts. 23. On 5 May 2016 in ABCMR Docket Number AR20150009800, the ABCMR denied his request for reconsideration of his earlier request for an upgrade of his discharge, citing all requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, based on his record of indiscipline, his service did not appear to meet the standard of acceptable conduct and performance of duty for Army personnel. 24. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that the patterns of misconduct and the severity of the last, warranted the characterization of service. The Board found no injustice or any clemency warranted in this case.. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. SIGNATURE: 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. REFERENCES: 1. Army Regulation 635-212, in effect at the time, provided the basic authority for the separation of enlisted personnel for unfitness or unsuitability. This regulation provided, in part, that Soldiers involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate under this provision. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for separation of enlisted personnel prior to and upon expiration of term of service; voluntary retirement of enlisted personnel of the Regular Army by reason of length of service; and issuance of Honorable, General, and Undesirable Discharge Certificates. a.  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.  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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160014303 0 6 1