ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20170007116


APPLICANT REQUESTS:  

* reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge
* personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

FACTS:

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) unknown docket number, on 28 August 1972.

2.  The applicant states he was made executive officer shortly after being dropped into the field.  He would be in the field with weapons that didn’t work and boots with holes in them.  After he got put in charge of payroll and supply, he would trade other units for things they needed like M-16 or ammunition or even boots just to keep his guys safe.  He would do it all over again if it meant that he would keep his guys from getting killed.  He left a mini-gun in his room for the next guy who took his place to use for trading to get what the guys in his unit needed.  It clearly states that in his records a mini-gun was found in his room after he left to fly back to (CONUS) continental United States.  He does not feel as though he was given a fair deal.  According to his lawyer, the general wanted to make an example of him; so, he was forced to resign.  He had given the letters to his military lawyer who was in the chain of command under the general, and the letters disappeared.  The letters stated that he was trading items to get stuff for his guys.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 26 June 1967.  On 13 May 1968, he was discharged to accept his commission.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 10 months and 18 days of active military service.

	b.  He was appointed as Reserve commissioned officer, with concurrent call to active duty, on 14 May 1968.

	c.  He served in Germany from 19 June 1968 to 30 June 1969.  He was promoted to first lieutenant on 14 May 1969.  He also served in Vietnam from 2 August 1969 to 9 June 1970.

	d.  On 26 February 1970, court-martial charges were preferred against him.  His 
DD Form 458 (Charge Sheet) shows he was charged with:

* one specification of possession of a Soviet AK 50 assault type rifle a prohibited weapon on 10 January 1970
* one specification of not registering a Soviet or Chinese Communist 7.62 mm semi-automatic carbine (SKS) which weapon was in the applicant’s possession on 14 February 1970
* one specification of retaining a .45-caliber pistol, property of the United States, on 14 February 1970
* one specification of retaining an aircraft machine gun (mini-gun) 7.62 mm property of the United States, on 14 February 1970
* one specification of retaining 197 Chinese Communist 7.62mm type cartridges (property of the U.S.); 27 .30-caliber cartridges, and 109 .45-caliber cartridges, said cartridges being live ammunition
* four specifications of stealing one .45 caliber pistol; one aircraft machine gun (mini-gun), six barrel type, 7.62 mm; two compasses; and 109 .45-caliber cartridges on 14 February 1970

	e.  On 16 March 1970, his immediate commander recommended a trial by general court-martial.

	f.  On 4 April 1970, subsequent to receiving legal counsel, the applicant voluntarily submitted his request for resignation from the Army for the good of the service under the provisions of Chapter 5 of Army Regulation (AR) 635-120 (Personnel Separations -  Office Resignations and Discharges).  In his request for discharge, he acknowledged:

* he did not desire to appear before a court-martial or a board of officers
* he was not subjected to coercion with respect to his resignation and was advised of and fully understood the implications of his action
* he understood that his resignation if accepted may be considered as being under other than honorable conditions
* he was advised of the basis for his contemplated trial by court-martial which could lead to a bad conduct discharge or dishonorable discharge of the effects of this request for discharge
* he elected to submit a statement on his own behalf

	g.  In his statement, the applicant stated he never intended at any time to keep the weapons or remove the weapons from Vietnam found in his footlocker in his room.  After being in the field as a platoon leader with A Company, 3rd Battalion, 8th Infantry, for about 2 months he could see that his unit and other units needed additional M-60.  He became executive officer shortly after arrival and he engaged in conversations with other units and found out they had a mini-gun that they could not use.  He did some quick thinking and concluded that this item would be very likely to be tradeable for the M-60’s.  During all this time he had no misgivings at all about trading these weapons.  If someone had weapons to spare and someone else could use them why not get together and benefit both sides.  He tried to help his unit as much as he could in his opinion the people in the field deserved all the help and equipment that they could get.  He considered himself a collector and/or a pack rat; he saves things that other people throw away.  He admits he was curious and it got out of hand.  He was impressed with numerous weapons that he had not seen before.  He started to think it was absurd that he should try to take things home but his old urge won out.  His wife was in emotional strain and he did not want to cause her any more problems.  That is why he chose to take care of this situation with as little strain as possible.

	h.  He provides other character statements, dated between 27 February 1970 and 14 March 1970, from other Soldiers in his unit in Vietnam, who spoke of his good character and how he was able to procure equipment his company needed.  They also stated that he was intelligent, hardworking, beyond reproach, honest, and trustworthy.  They stated how hard it was to get equipment through normal channels trading and scrounging was about the only way to get items at that time.

	i.  On 15 April 1970, the Commanding General, 4th Infantry Division, recommended approval of the applicant’s request for resignation for the good of the service in lieu of court-martial, with an under other than honorable conditions discharge and forwarded the proceedings to The Adjutant General of the Department of the Army.

	j.  On 5 May 1970, The Adjutant General forwarded the proceedings to the Army Review Boards Agency for action.  On 7 May 1970, an Ad Hoc Review Board accepted his resignation with an under other than honorable conditions discharge.

	k.  On 10 June 1970, the applicant was discharged.  His DD Form 214 for this period of service shows he was discharged under the provisions of AR 635-120, chapter 5, with an under other than honorable conditions discharge.  His DD Form 214 shows he completed 2 years, 11 months, and 15 days of active military service.  It also shows he was awarded or authorized:
* National Defense Service Medal
* Vietnam Campaign Medal
* Vietnam Service Medal
* overseas service bar

	l.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 3 July 1981, the ADRB, after considering his case denied his request.  The ADRB determined that the applicant was properly discharged.

	m.  He appealed to the Army Board for Correction of Military Records (ABCMR) for a discharge upgrade; however, on 23 August 1972, the Board denied his request.

4.  By regulation (AR 15-185), applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

5.  By regulation (AR 635-120), an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in AR 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction), prior to charges being preferred and prior to being recommended for elimination under the provisions of AR 635-100.  A resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

6.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that it could make a fair and equitable decision without a personal appearance from the applicant.

Additionally, based upon the serious, criminal nature of the misconduct (larceny) and a lack of current evidence to show that the applicant has learned from the events leading to his discharge, the Board concluded that the characterization of service received at the time of separation 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 (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct.  

	a.  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.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

2.  AR 635-120 (Personnel Separations – Officer Resignations and Discharges) implements the statutory provisions of Title 10, U. S. Code governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

3.  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 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)	 AR20170007116


5


1