ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 May 2019

	DOCKET NUMBER:  AR20170005438


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of his general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 3 November 1971
* Army Board of Correction of Military Records (ABCMR) Record of Proceedings, dated 14 April 2015

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 AR20140014012 on 14 April 2015.

2.  The applicant states:

	a.  He enlisted in the Regular Army (RA) for training as a medic or cook, instead he was handed orders for infantry training with the 101st Airborne Division.  When he returned from Vietnam, he was assigned to the 2nd Armor Division, Fort Hood, TX.  Unknowingly, he was suffering from early signs of post-traumatic stress disorder (PTSD).  After his release from the hospital in Japan, he should have been assigned to Fort Campbell, KY, to perform as a cook’s help.  With 1 year and 4 months remaining on his contract, he was detailed to drive a tank.  From May to September 1970, he caught hell all of the time.

	b.  He never kicked or hit a noncommissioned officer in Texas.  He was the only Vietnam veteran in his company; therefore, a sergeant assigned him to kitchen police (or patrol) (KP) on his birthday, which was the Labor Day weekend.  The other Soldiers received a 4-day pass and he did not.  So, he paid another Soldier to perform his KP duty.  He did his best and he currently wants an honorable discharge.  He has been seen by mental hygiene for 28 years and not only because of Vietnam and Hamburger Hill.  

3.  Review of the applicant’s service record shows: 

	a.  He enlisted in the RA on 6 September 1968.  His enlistment contract shows he enlisted for 3 years but does not show he enlisted for a specific MOS. 

	b.  He completed advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

	c.  He served in Vietnam from 12 April to 17 November 1969.  He was promoted to pay grade E-4 on 13 March 1970.

	d.  His DA Form 20 (Enlisted Qualification Record) shows his assignments as follows: 

* rifleman/scout observer with Company E, 3rd Battalion (Airmobile), 187th Infantry, from 28 March 1969 through 16 November 1969
* patient at U.S. Army Hospital, Camp Zama, Japan, from 17 November through 14 February 1970
* rifleman with Company A, 1st Battalion, 41st Infantry, 2nd Armored Division, Fort Hood, TX, from 24 March through 2 December 1970
* dropped from the rolls - desertion from 3 December 1970 through 6 January 1971
* duty soldier at the Special Processing Detachment, U.S. Army Garrison, Fort Bragg, NC, from 7 January through 24 February 1971
* rifleman with Company B, 1st Battalion, 58th Infantry, Fort Benning, GA, from 3 March through 3 November 1971

	e.  On 9 February 1971, he was convicted by a special court-martial of being absent without leave (AWOL) from 30 November 1970 to 7 January 1971.  His sentence included a suspended confinement at hard labor for 2 months, a reduction to pay grade E-1, and a forfeiture of pay.  On 10 February 1971, the convening authority approved the sentence, except for the portion proving for confinement at hard labor for 2 months.  

	f.  On 18 May 1971, the applicant accepted nonjudicial punishment for being AWOL from 10 to 18 May 1971.  His punishment included a reduction to pay grade E-1.

	g.  His record is void of the complete facts and circumstances surrounding his discharge.  However, his record contains a DD Form 214 showing he was released from active duty on 3 November 1971, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation, paragraph 5-3 (Secretarial Authority), with a general, under honorable conditions characterization of service, by reason of Early Release of First Term RA Enlisted Personnel.  He was transferred to the U.S. Army Reserve Control Group.  He completed 2 years, 11 months, and 14 days of active service, with 76 days of time lost.  

	h.  On 26 June 2001, he was issued a DD Form 215 (Correction to DD Form 214) showing he was awarded and authorized the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Vietnam Service Medal with three bronze service stars
* Overseas Service Bar
* Vietnam Campaign Medal with Device 1960
* Presidential Unit Citation
* Valorous Unit Award
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Bronze Star Medal
* Combat Infantryman Badge

4.  An advisory opinion was received from the Medical Advisor/Psychologist, Army Review Boards Agency, on 15 August 2017, in the processing of this case.  The medical advisor reviewed the record for alleged medical condition(s) not considered during medical separation processing.  The medical advisor reiterated the applicant’s period of service and stated it was unclear to what extent the applicant’s mental health conditions were considered at the time of his separation, though a general discharge does not require this examination.  A review of the available documentation did not discover sufficient evidence of mental health considerations to change the character of the applicant’s discharge.  A causal nexus between the applicant’s misconduct and his mental health conditions was not discovered.

5.  The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal.  In his response, the applicant stated he should have been assigned to Fort Campbell with duties as a dishwasher for 1 year and 4 months.  All of the draftees went home when they returned from Vietnam.  Being assigned as a tank driver at Fort Hood was a bad move for him.  He provided his:

* DD Form 215, dated 26 June 2001
* Department of Veterans Affairs (VA) Rating Decision (first page), dated 14 January 2004
* letter from the VA, dated 24 January 2004
* DOD/Uniform Services Identification and Privilege Card

6.  By regulation (AR 635-200) enlisted members could be separated for the convenience of the Government by authority of the Secretary of the Army.
7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  Based upon a patern of misconduct which led to the applicant’s discharge, as well as a lack of character evidence to show that the applicant has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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.
	 
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 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7 – an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 5-3 – members could be separation for the convenience of the Government under the authority by the Secretary of the Army.  The discharge or release of any enlisted Soldier of the Army for the convenience of the Government would be in the Secretary’s discretion with issuance of an honorable or general discharge certificate, as determined by him.

2.  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 type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on 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)	 AR20170005438


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