ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 October 2019 DOCKET NUMBER: AR20170016807 APPLICANT REQUESTS: reconsideration for his previous request for his under other than honorable (OTH) conditions discharge to be upgraded to an under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter and statement 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) in Docket Number AC89-05508 on 1 November 1989. 2. The applicant states, he did not know the fact that he was wounded in action, and being awarded the Combat Infantryman Badge (CIB) could be used as a basis for consideration. He believes consideration should be given to the fact he was wounded in action during his service in Vietnam. 3. The applicant provides his self-authored letter, dated 4 September 2015, that shows he disagrees with the outcome of a previous decision. Over time he had the opportunity to think about the situation that defines his life, and decisions he made when he was a young boy in the military. He knows there is nothing he can do to change what happened in the past, and all he can do now is to try and live the rest of his days the best he can. a. He is truly sorry for his actions , and now as a man he sees the errors of his ways. He is sorry for being absent without leave (AWOL) and listening to the judge advocate general (JAG) officer who told him what to do in order to get discharged from the service. After seeing the pain and hurt it had caused him and his family, he would have never placed himself in the position. Currently, he is in desperate need of help. He is sick and homeless with his wife. He has diabetes and other medical issues. He is praying for the Board’s mercy in hope of forgiveness and help. b. In his self-authored statement, he states “I never left a fallen comrade behind! Why should I be left behind?” He asks, to give him and his family some help and consideration. He was a young kid and didn’t know better. He is truly sorry that he went AWOL, but he could not take care of his wife and child on $10.00 a month. He asks to forgive him for what he did wrong. If he was older, he would have done it a different and better way. He messed up his life, received a bad discharge, and lost his wife and child. He made a very bad decision and it cost him livelihood. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) for three years on 10 January 1967. b. DA Form 20 (Enlisted Qualification Record): * Item 31 (foreign service) shows he served in Vietnam from 2 June 1967 to 1 February 1968 * Item 33 (appointments and reductions) shows he attained the rank of specialist four (SP4/E-4) on 6 June 1968, and his reduction to the rank of private (PVT/E-1) on 1 April 1969 * Item 44 (time lost) shows his record of 309 days for AWOL, and 195 days for confinement during the period from 11 December 1968 to 28 January 1971 c. DA Form 20B (Record of Court-Martial Convictions) shows 3 AWOL convictions: * Special court-martial order # 510, from 11 December 1968 to 28 February 1969, adjudged on 21 March 1969 * Special court-martial order # 995, from 24 May 1969 to 27 June 1969, adjudged on 10 July 1969 * General court-martial order 27, from 20 November 1969 to 20 April 1970, adjudged on 11 August 1970 5. A review of the applicant’s orders for awards show: a. General order # 7355, dated 13 December 1967, published by Headquarters, 1st Cavalry Division, shows he was awarded the Air Medal for meritorious achievement while participating in aerial flight in Vietnam from June 1967 to November 1967. b. General order # 3, dated 4 January 1968, published by Headquarters, 2nd Surgical Hospital, shows he was awarded the Purple Heart for his wounds received in action on 3 January 1968 while serving in Vietnam. 6. A review of the applicant’s chronological record of non-judicial punishment and convictions by court-martials shows: a. Special Court-Martial Order #510, dated 1 April 1969, shows he was charged and convicted of one specification of being AWOL from 11 December 1968 to 28 February 1969. His sentence included confinement at hard labor for three months, and forfeiture of $46.00 per month for three months. The sentence was adjudged on 21 March 1969. The sentence was approved, but the execution was suspended until 20 June 1969, at which time unless the suspension was vacated, the sentence would be remitted without further action. b. Special Court-Martial Order 995, dated 10 July 1969, shows he was charged and convicted of one specification of being AWOL from 24 May 1969 to 27 June 1969. His sentence included confinement at hard labor for one month, and forfeiture of $50.00. The sentence was adjudged on 10 July 1969. c. On 23 July 1969, he accepted non-judicial punishment for the specification of being AWOL from 21 July 1969 to 22 July 1969. His punishment included 7 days restriction to the company area and extra duty for 7 days. d. General Court-Martial order 27, dated 19 October 1970, shows he was charged and convicted of one specification of being AWOL from 20 November 1969 to 20 April 1970. The sentence included forfeiture of $100.00 per month for six months, confinement at hard labor for six months, and to be discharged from the service with a bad conduct discharge. The sentence was adjudged on 11 August 1970. e. On 19 October 1970, the sentence was approved. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of the appellate review, the applicant was to be confined to the post stockade, Fort Hood, TX. f. General Court-Martial Order 230, dated 3 November 1970, shows the unexecuted portion of the sentence to confinement at hard labor for six months and forfeiture of $100.00 per month for six months, adjudged on 12 August 1970 and promulgated in general court-martial order # 27, was suspended for six months, unless the suspension is sooner vacated, the unexecuted portion of the sentence to confinement and forfeiture was to be remitted without further action. g. On 27 January 1971, the U.S. Army Court of Military Review found the findings of guilty and sentence as approved by proper authority correct in law and fact and having determined, on basis of the entire record, that the findings of guilty and only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for six months, and forfeiture of $90.00 per month for six months should be approved, the same as modified were affirmed. h. Special orders #66, dated 16 March 1971, published by Headquarters, III Corps and Fort Hood, TX, shows the applicant was discharged Under Conditions Other Than Honorable (DD Form 259A) Bad Conduct Discharge. i. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 March 1971, shows in: * Item 11a (Type of transfer or discharge) discharged * Item 11c (Reason and authority) Chapter 11 (Dishonorable and Bad Conduct Discharge), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an under conditions other than honorable characterization of service * Item 22b (Total active service) 2 years, 9 months, and 19 days * Item 22c (Foreign and / or sea service) 8 months and 1 day * Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows (1) Vietnam Service Medal w/ 2 bronze service stars (2) Combat Infantryman Badge (3) Republic of Vietnam Campaign Medal (4) Air medal w/ 1 oak leaf cluster (5) Purple Heart (6) Marksman Marksmanship Qualification Badge with Rifle Bar 7. On 22 April 1980, he applied to the Army Discharge Review Board (ADRB) and provided a self-authored statement in conjunction with his DD Form 293. He stated he felt the discharge should be changed because his Bad Conduct Discharge (BCD) for being AWOL was too severe. His actions were not associated with the array of any criminal elements. He was given the BCD for trying to keep his family together. He requested a hardship discharge because he could not care for his wife and child on such low pay. His request was denied. 8. On 12 January 1981 (1980 error in date), he was informed that based on the nature of the request, and the fact he was separated by a General Court-Martial, in effect he was informed he was not eligible for the ADRB. He was informed to submit his application to the Army Board for Correction of Military Records (ABCMR). 9. On 28 September 1988, he submitted his DD Form 149 to the ABCMR, which was considered in Docket Number AC89-05508 on 1 November 1989. The Board determined that an alleged error should have been discovered on the day of discharge, and his application was not submitted within the required time. 10. On 15 October 2010, he submitted a new DD Form 149 and DD Form 293 to the ABCMR, which was received on 22 October 2010, and assigned case number AR20100026385. a. He provided a copy of his DD Form 214, for the period ending 16 March 1971, which includes his self-authored notes, and a reference to post-traumatic stress disorder (PTSD). b. He provided a self-authored letter, dated 15 October 2010, where he stated, he was seeking information concerning his long awaited favorable decision in his request for an upgrade. He was informed to be patient, but later was informed the Board knew nothing about his case. He stated that the late Congressman X____ felt the applicant got a “raw deal” for just being AWOL. He has garnered the willingness of Congressman X___ to help him get justice and a general discharge under honorable conditions with medical assistance for his wounds received. His penalty was very wrong for just being AWOL and not assaulting anyone or being insubordinate. He was just young and stupid. The JAG officer set him up, since he was young and did not know any better. He went to Vietnam where he served honorably. He was taught not to ever leave a fallen Soldier on the battlefield, but now he realizes he is a fallen Soldier and has been left behind. c. He provided a self–authored letter, dated 11 November 2010, where he restated his concerns addressed in his previous requests. He also he was wounded and was an air-evacuation back to the states. He was 18 years old when he was awarded the Purple Heart with 2 bronze service stars, the CIB, air assault medal and Vietnam campaign ribbons, which are all stress medals. He has PTSD, and back in 1967 there wasn’t anybody checked or diagnosed with PTSD. He went from a good Soldier to someone that did not care. His injuries are service connected but he cannot get medical attention because of his BCD. He indicated he submitted an application 4-5 weeks prior and not received acknowledgment if it was received. d. He provided a self-authored letter, dated 30 November 2010, where he addressed Chief X___X. X____, stating he received a l10 November 2010 letter from the ABCMR indicating his DD Form 149 and DD Form 293 were received. In effect, he states after all his previous applications, he cannot do anything but pray that this time he is really going to be considered for the upgrade. He read in an Army manual if a Soldier served more than 180 days without getting any kind of discipline, then one has a good chance for an upgrade. He fought in Vietnam when he was 18, and then laid in a hospital for 8 months recovering from his combat wounds. He received his medals but did not know about post-traumatic stress disorder (PTSD). He was just a child where most his age were in high school. Deserters received Honorable discharges, but he went AWOL and received a BCD. He was 61 years old at the time of his application and knows he won’t live another 61 years, and hopes and prays for justice. e. On 18 April 2011, the ABCMR provided a response to his 15 October 2010 application for reconsideration of Docket Number AC89-05508. The ABCMR reviewed the application for reconsideration under the provisions of paragraph 2-15b, in AR 15-185 (ABCMR), and determined it was not received within one year of the ABCMR’s original decision, and it had not been previously reconsidered. The request was returned to the applicant without action, and was informed that the ABCMR would not consider any further requests for reconsideration of the matter, and to seek relief in a court of appropriate jurisdiction. 11. On 1 October 2019, the Army Review Boards Agency medical member rendered an advisory opinion in the processing of this case. She opined: a. The applicant’s military records do, at the time of discharge, do support an existence of a combat-related trauma syndrome. b. His records indicate he did meet medical retention standards in accordance with AR 40-501 (Medical Services – Standards of Medical Fitness). c. There is sufficient evidence to support the existence of a mitigating behavioral health condition at the time of the applicant’s misconduct or discharge. 12. On 1 October 2019, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. On 11 October 2019, the applicant responded with a self-authored statement dated 11 November 2019. He stated, after receiving the advisory board opinion, he is in total agreement with the facts finding that he is experiencing some forms of PTSD. He has tried, to no avail, to get some kind of help from the Veterans Administration (VA). 13. By regulation, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 14. By regulation (AR 635-200), 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. 15. 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 relief was warranted. Board members noted an extensive history of misconduct and multiple convictions by court-martial (including 3 AWOLs). Based on the findings of the medical provider, and in reaching its determination, the Board considered the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance, and Board members believe his behavioral health condition warrants upgrading his character of service to general. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC89-05508 on 1 November 1989. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his character of service to Under Honorable Conditions (General). 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. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides for the separation of enlisted personnel: 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. c. An undesirable discharge is an administrative separation under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 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) AR20170016807 7 1