ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170013210


APPLICANT REQUESTS:  

* an upgrade of his under other than honorable conditions discharge to honorable
* his Vietnam Service time be put on his DD Form 214 (Report of Separation from Active Duty)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Undated self-authored letter
* Special Orders (SO) Number 40, dated 16 February 1968
* Order 215 extract, dated 2 August 1968
* Unit Orders Number 76, dated 18 October 1968
* SO Number 270, dated 22 October 1968
* Letter to X__, dated 11 November 1968
* Letter of appreciation, dated 27 November 1968
* Letter of appreciation, dated 24 December 1968
* SO Number 177, 8 July 1969
* SO Number 191, dated 22 July 1969
* Instructions for Personnel memo, dated 24 July 1969
* SO Number 220, dated 8 August 1969
* In-processing checklist, dated 16 September 1969
* DA Form 3078 (Personal Clothing Request), dated 23 September 1969
* Report of medical exam and report of medical history, dated 24 July 1975
* Chapter 10 request, unsigned undated
* SO Number 287, dated 14 October 1975
* DD Form 214


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 in effect, he wants the Board to review his orders showing his active duty time and Vietnam service.  He did report to Fort Devens, MA in September 1969.  In-processing checklist dated 16 September 1969 and his clothing request dated 23 September 1969.  According to his Form PC FL 26, dated 28 July 1969 his expiration term of service (ETS) was 21 March 1970, so when he in-processed into Fort Devens they said to not worry about showing up, his ETS was so close.  Orders requesting general discharge, not dishonorable, dated 31 July 1975.  He left Vietnam 1969.  Had a 30 day leave.  Then he had orders to go to Fort Devens, MA on 8 August 1969.  He reported to Fort Devens, he had an early out set home (unclear sentence).  They were going to send him his discharge papers from 104th Transportation Company.  He got home and he did not get his papers.  He went to Fort Devens twice to see about his discharge papers.  They would not sign for him so he went back home.  He went on with his civilian life.  In 1975, he had a job and family.  Then the military police (MP) came to his door.  The MPs took him to Fort Dix, NJ for a few days.  He went back home and had to go back to Fort Dix, NJ and that is when he got his undesirable discharge papers.  He felt he should not deserve an undesirable discharge.

3.  The applicant provides:

* An undated self-authored letter addressed above
* SO Number 40, dated 16 February 1968, showing he was reassigned from Fort Belvoir, VA to Fort Bliss, TX with a report date of 28 February 1968 with onward travel to Vietnam in special instructions
* Order 215 extract, dated 2 August 1968 further assigning him to Headquarters Company 937 Combat Engineer Group
* Unit Order Number 76, dated 18 October 1968, showing he was to be promoted to temporary grade specialist/E-4
* SO Number 270, dated 22 October 1968, showing he was awarded primary military occupational specialty (MOS) 64B20 (Heavy Vehicle Driver) and secondary MOS 12A10 (Pioneer)
* Letter to X__, dated 11 November 1968, thanking him for his units efforts to clear jungle vegetation in an area favorable to ambush
* Letter of appreciation, dated 27 November 1968, congratulating his troops for assisting to further relations with all Republic of Vietnam commands
* Letter of appreciation, dated 24 December 1968, from Lieutenant Colonel (LTC) X__ thru LTC X__ for a job well done
* SO Number 177, dated 8 July 1969, reassigning him to U.S. Army Republic of Vietnam (USARV) Return Detachment on 26 July 1969 with onward travel to Fort Lewis, WA on 2 August 1969 after a 12 month tour
* SO Number 191, dated 22 July 1969, amending SO Number 177 to read to U.S. Army Republic of Vietnam (USARV) Return Detachment on 21 July 1969 with onward travel to Fort Lewis, WA on 28 July 1969
* Instructions for Personnel memo, dated 24 July 1969 which states he was placed on 30 days authorized leave and given the following additional instructions: assignment instructions should be received in 20 days if not received call Fort Lewis, WA returnee/reassignment station if no assignment instructions are received upon termination of authorized leave, report to the nearest military installation
* SO Number 220, dated 8 August 1969, shows he was further reassigned after leave to Fort Devens, MA on 30 August 1969
* In-processing checklist, dated 16 September 1969, shows he was assigned duty with 104th TC Transportation Company with an out date of 17 September 1969
* DA Form 3078 (Personal Clothing Request), dated 23 September 1969, shows records of clothing items requested/received from Fort Devens, MA Army clothing sales store unsigned by recipient
* Report of medical exam and report of medical history, dated 24 July 1975, shows scars on eye and head and applicant stated he was in good health
* Chapter 10 request, unsigned undated shows an unsigned memo stating the applicant would be furnished a General Discharge Certificate
* SO Number 287, dated 14 October 1975, showing he was discharged on 14 October 1975 with an Undesirable Discharge Certificate
* DD Form 214 that shows he was discharged on 14 October 1975 with an under conditions other than honorable character of service

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

a.  He enlisted in the Regular Army on 30 November 1966.

	b.  On 11 September 1967, he accepted non-judicial punishment for failing to go at the time prescribed to his appointed place of duty.  He was reduced to private/E-2.

	c.  Special Court Martial Order Number 7, dated 17 January 1968 shows on 20 December 1967, he was arraigned and tried before a special court-martial for the charge of absent without leave (AWOL) and its one specification of without proper authority absent himself from his unit from 26 September 1967 until 7 December 1967.  He was found not guilty.

	d.  Summary Court Martial Order Number 669, dated 22 July 1968 shows on 29 May 1968, he was convicted by a summary court-martial for the charge of AWOL and its one specification of without proper authority absent himself from his unit from 28 February 1968 until 13 May 1968.  He was sentenced to confinement at hard labor for 30 days and forfeiture of $50 per month for one month.  On 22 July 1968, the convening authority approved the sentence, ordered it duly executed.

	e.  His DA Form 20 (Enlisted Qualification Record) block 38 (Record of Assignments) shows he completed a tour in Vietnam from 31 July 1968 until 22 July 1969 with excellent conduct and efficiency.

	f.  On 8 December 1969, he was convicted by a summary court-martial for the charge of AWOL and its one specification of without proper authority absent himself from his unit from 26 September 1969 until 25 November 1969.  He was sentenced to be reduced to private first class/E-3 and forfeiture of $120 for one month.  On 12 December 1968, the convening authority approved the sentence, and ordered it duly executed.

	g.  Federal Bureau of Investigation record number 183 712 G shows the following charges/on:

* GL (Grand larceny) (auto) and Auto, 27 September 1967 (Fredericksburg, VA)
* Resisting arrest Federal Violation/Deserter 18 November 1969 (Loudonville, NY)
* Forgery/forged instrument 2nd degree 11 March 1970 (Cooperstown, NY)
* Class D felony Forgery (Sidney, NY)

	h.  On 6 October 1972, the commanding officer of US Army Enlisted Personnel Support Center, Fort Benjamin Harrison, IN initiated a discharge for misconduct under the provisions (UP) of Army Regulation (AR) 635-206 (Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion).  It stated the appropriate civil authorities have been contacted and action initiated to process enlisted man’s elimination UP AR 635-206.  Elimination action has been delegated to Headquarters, Fort Dix NJ.

	i.  On 9 February 1973, memo stating the applicant was paroled on 20 November 1972.  No military detainer was lodged against him and he was released on same said date.

	j.  On 16 June 1975, DA Form 3835 (Notice of Unauthorized Absence from United States Army) stated the applicant was reported AWOL 19 December 1969; dropped from rolls on 6 March 1970 from Fort Meade, MD.  On 11 March 1970, he was arrested by civil authorities and confined for civil offense - was released from civil confinement 20 November 1972 without military authorities being notified.

	k.  DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 31 July 1975.  He was charged with three specifications of AWOL from 20 November 1972 until 21 July 1975, 19 December 1969 until 28 February 1972, and 26 September 1967 until 5 October 1967

	l.  He consulted with legal counsel on 31 July 1975 and subsequently requested discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He acknowledged:

* the maximum punishment if found guilty
* if his request was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* if his discharge request is accepted, he would be deprived of many or all Army benefits
* 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 may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	m.  On 31 July 1975, his immediate commander recommended separation UP of chapter 10, AR 635-200.

	n.  Consistent with the chain of command’s recommendation on 22 September 1975, the separation authority approved the applicant’s request for discharge for the good of the service on 23 September 1975.  He directed an Undesirable Discharge Certificate be furnished and reduction to the lowest grade.

	o.  On 14 October 1975, the applicant was discharged under the provisions of AR 635-200, Chapter 10 under other than honorable conditions in the rank of private/E-1.  He completed 3 years, 11 months and 20 days of active service.  He had a total of 1783 days of lost time.  His DD Form 214 shows in:

* block 18f (Foreign and/or Seas Service) zero foreign service
* Block 32 (Remarks), no listing of any deployments

	p.  On 28 May 1976 DD Form 215 (Correction to DD Form 214 Report of Separation from Active Duty) was issued to correct block 18f (Foreign and/or Sea Service This Period) to show 1 year.

5.  By regulation (AR 635-200), chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

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:

1.  After reviewing the application and all supporting documents, the Board found the relief was warranted.  The applicant’s contentions were carefully considered.  The analyst of record provided relief in the administrative notes below for the foreign service credit.  

2.  In reference to the request for a discharge characterization upgrade, 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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the amount of misconduct and some including serious, criminal misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

In addition to the administrative notes annotated by the Analyst of Record (below the signature), the Board determined 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.

ADMINISTRATIVE NOTE(S):

A review of the applicant’s records shows he is authorized awards and decorations not listed on his DD Form 214.  As a result, amend his DD Form 214 to reflect the following:

* Block 26 add, Vietnam Service Medal with 4 bronze service stars; Vietnam Campaign Medal; Republic of Vietnam Gallantry Cross Unit Citation with Palm (by Department of the Army General Order (DAGO) Number 8, dated (1974)), and Meritorious Unit Commendation (by DAGO Number 48 (1971))
* Block 27 add: SERVICE IN Vietnam FROM 19680731-19690722


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

	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)  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.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

4.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2, in effect at the time, contained guidance for preparation of the DD Form 214 and stated that item 18f (or 22c in later versions) shows the total active duty service performed outside the continental limits of the United States for the period covered by the DD Form 214 and the last overseas theater in which service was performed. 

5.  Army Regulation 600-8-22 (Military Awards) states the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam after 3 July 1965 through 28 March 1973.  A bronze service star is authorized with this award for each Vietnam campaign a member is credited with participating in.  
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013210


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