ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170006841 APPLICANT REQUESTS: amendment to his DD 214 (Armed Forces of the United States Report of Transfer or Discharge): * Removal of Army Regulation (AR) 635-212 (Discharge Unfitness and Unsuitability) from item 25 (Separation Authority) * Removal of unsuitability from item 28 (Narrative Reason for Separation) * Listing of all his awards, medals, and unit citation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 period ending 25 November 1969 * DD Form 214 period ending 28 August 2014 * Letter from the Army Review Board Agency * Honorable Discharge Certificate FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2 The applicant states, he was informed by a veteran’s service officer on how to request the removal of regulation AR 635-212 from his DD form 214. He is also requesting a listing of his citations, awards and medals recorded on his DD Form 214. 3. The applicant provides: a. DD 214, dated 25 November 1969, which shows his character of service as Under Honorable Conditions and missing his awards. b. DD 214, dated 28 August 2014, which illustrates a changing in character of service to honorable and addition of the previously missing awards: * Vietnam Service Medal with two Bronze Stars * Republic of Vietnam Campaign Medal with device 1960 * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Rifle Bar c. Letter from the Army Board for Correction of Military records informing him that the Board denied his request for a Purple Heart. For reconsideration of docket number AR20130016895. d. Honorable Discharge Certificate date 25 November 1969. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 21 October 1968. b. He served in Vietnam from 29 June 1969 to 21 November 1969. c. On 4 April 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specification AWOL (absent without leave) for a period from on/or about 1930 hours, 2 April 1969 to 2030 hours 2 April 1969. d. On 17 October 1969, his immediate commander notified him that he recommended that action was being initiated to separate him under the provisions of Army Regulation (AR) 635-212 (Personnel Separations Discharges, Unfitness and Unsuitability ), for unsuitability with a general discharge, based on medical recommendations and poor performance of duties. e. On 22 October 1969, the applicant consulted with legal counsel and acknowledged after being advised his rights and of the basis for the contemplated separation action, its effects, and his rights to a board of officers, personal appearance before a board of officers and to representation by counsel. He further elected not to make a statement in his own behalf. He understands that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him. f. The chain of command recommendations were unavailable for review. g. The separation authority approved the applicant's discharge on 11 November 1969, under the provisions of AR 635-212, for unsuitability and directed issuance of a general discharge certificate. h. The applicant was discharged from the Army on 25 November 1969. His DD Form 214 shows he was discharged in accordance with AR 635-212, for unsuitability. His DD Form 214 reflects his service was characterized as Honorable Conditions and his narrative reason for separation is unsuitability. He served 1 year, 1 month, and 5 days of creditable active military service. It also shows, he was awarded or authorized: * Vietnam Service Medal with two Bronze Stars * National Defense Service Medal * Republic of Vietnam Campaign Medal with device 1960 * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Combat Infantryman Badge * Expert Marksmanship Qualification Badge with Rifle Bar 4. Board docket AR20110005202.dated 30 September 2011 reflects the applicant requested item 23 (Specialty number and title) and item 13 (Decoration, Medals, Badges and citations) changes. The Board granted all authorized awards and badges on his new DD 214 dated 28 August 2014. The Board denied his request for the MOS 11C (Infantry Indirect Fire Crewman), the governing regulation in effect at the time provided for entering only the primary military occupational specialty held at the time of separation. 5. Board docket AR20130016895.dated 10June 2014 reflects that the applicant requested the award of the Purple Heart and his general discharge upgrade to honorable. The Board denied his request for the Purple Heart, there was no evidence showing he was ever wounded. The Board granted his request for upgrade to honorable in item 24 (Character of Service). 6. By regulation, Army Regulation (AR) 635-5 (Separation Documents) * Item-13,enter all awards, decorations and badges * item 25 (separation authority) enter the regulatory or statutory authority cited in directives authorizing separation * item 28 (narrative reason for separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority 7. By regulation, Army Regulation (AR) 672-3 (Unit Citation and campaign Participation Credit Register). a. Not more than one Republic of Vietnam (RVN) Gallantry Cross Unit Citation will be worn by any individual. Although wear of multiple awards of this unit citation badge is not authorized, official military personnel and historical records will indicate all awards received. In those instances, however, where a single unit received duplicate Vietnamese unit awards during the same period only one will be recorded in official military personnel and historical records. b. RVN Gallantry Cross Unit Citation takes precedence over the RVN Civil Actions Unit Citation and is beneath all United States unit citations. 8. By regulation, AR 635-212, paragraph 5-31 states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated from when they have failed to respond to counseling. All members separated under this paragraph will be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority determines, for some specific reason, have no potential for useful service under conditions of full mobilization. Before making such determination, the separation authority will give due consideration to the gravity of a situation requiring a full mobilization and the positive motivation such condition may will have on these members, also, the probably maturing effect of an additional two more years in age. * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion or emotionally 9. 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 reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. A review of his record to add all authorized awards to his separation document was completed by a previous Board, and this Board did not discover additional awards to add. In reference to his discharge, the Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the preponderance of the evidence, the Board agreed there was no error or injustice 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. 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 (AR) 635-212 (Personnel Separations Discharge Unfitness and Unsuitability) establishes policy and provides procedures and guidance for eliminating personnel who are found to be unfit or unsuitable for further military service. 2. AR 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Paragraph 5-31 states members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated from when they have failed to respond to counseling. All members separated under this paragraph will be released from active duty and transferred to the Individual Ready Reserve to complete their service obligation, except those whom the separation authority determines, for some specific reason, have no potential for useful service under conditions of full mobilization. Before making such determination, the separation authority will give due consideration to the gravity of a situation requiring a full mobilization and the positive motivation such condition may will have on these members, also, the probably maturing effect of an additional two more years in age. * Poor attitude * Lack of motivation * Lack of self-discipline * Inability to adapt socially or emotionally * Failure to demonstrate promotion or emotionally 3. By regulation, AR 635-5 (Separation Documents) * Item13,enter all awards, decorations and badges * item 25 (separation authority) enter the regulatory or statutory authority cited in directives authorizing separation * Item 28 (narrative reason for separation) enter the reason for separation (shown in AR 635-5-1) based on the regulatory or statutory authority 4. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), published to assist commanders and personnel officers in determining or establishing the eligibility of individual members for campaign participation credit, assault landing credit, and unit citation badges awarded during the Vietnam Conflict, the Grenada Operation, and the period of service subsequent to the Vietnam Conflict up to September 1987. Department of the Army General Orders 8, 1974, announced award of the Republic of Vietnam Gallantry Cross Unit Citation with Palm for service in Vietnam to the Headquarters, United States Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973; and Headquarters, United States Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. 5.. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006841 5 1