ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2020 DOCKET NUMBER: AR20180005986 APPLICANT REQUESTS: a. an upgrade of his discharge under other than honorable conditions to honorable or general under honorable conditions and b. a personal appearance hearing. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: two DD Forms 149 (Application for Correction of Military Record), dated 15 February 2018. FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. Due to his age of 18 years old at the time, he did not understand. b. He recalls having symptoms of post-traumatic stress disorder (PTSD) because he was having family problems. His parents were going through a divorce and his brother was killed in car accident after receiving orders to Vietnam. He had no support system. c. He asked for help because his mind was messed up. He did not receive medical care. He was referred to the Post Chaplain. 3. On 31 October 1966, the applicant enlisted in the Regular Army. On 30 July 1968, he was honorably discharged to immediately reenlist. On 31 July 1968, the applicant reenlisted in the Regular Army. 5. He served in Vietnam during the period of 20 September 1968 to 6 August 1969 and he participated in four campaigns while assigned to Battery C, 2d Battalion, 77th Artillery Regiment, 25th Infantry Division. 5. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on the following occasions: a. On 12 April 1967, for being absent without authority (AWOL) from his unit, on or about 1 April 1967 until on or about 3 April 1967; his punishment consisted of a reduction in rank/grade from private (PVT)/E-2 to PVT/E-1, forfeiture of $20, 14 days of restriction to the limits of his company, and 14 days of extra duty; he did not appeal his punishment; b. On 19 February 1968, for disobeying the orders of superior noncommissioned officers on or about 16 February 1968; his punishment consisted of 14 days of restriction to the company area, mess hall, place of duty and chapel, and 14 days of extra duty; he did not appeal his punishment; c. On 11 July 1968, for being absent without leave (AWOL) from his unit on or about 0001 hours on 8 July 1968 until on or about 1245 hours on 8 July 1968; his punishment consisted of reduction in rank/grade of specialist four (SP4)/E-4 to private first class (PFC)/E-3 which was suspended until 16 August 1968, forfeiture of $20 for 1 month, 14 days of extra duty of 2 hours per day, and restriction to the limits of his company area, mess hall, duty station, staff judge advocate's office, and post chapel; he did not appeal the punishment; and d. On 20 April 1970, for failing to go at the time prescribed to his appointed place of duty on 19 April 1970; his punishment consisted of 10 days of restriction and forfeiture of $10; he did not appeal the punishment. 6. A DA Form 1 (Morning Report), dated 8 July 1970, shows the applicant reported as AWOL from his unit on 25 June 1970. 7. His DA Form 553 (Deserter Wanted by Armed Forces), dated 24 August 1970, shows he was dropped from the rolls on 8 July 1970. 8. On 7 February 1973, the Federal Bureau of Investigations reported the applicant had been located at Sandia Base, NM, and the Military Police Company, Sandia Base, NM, had been advised. 9. His DA Form 188 (Extract Copy of Morning Report), dated 15 February 1973, shows he was apprehended by civilian authorities in Albuquerque, NM, and returned to military control at Kirtland Air Force Base, NM, on 3 February 1973. 10. His DD Form 458 (Charge Sheet), dated 12 February 1973, shows court-martial charges were preferred against him for being AWOL from his organization from on or about 8 July 1970 until he was apprehended on or about 3 February 1973. 11. His DA Form 2496 (Disposition Form), dated 15 February 1973, shows after consulting with legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In doing so, the applicant acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge * he was advised he could submit any statements he desired in his own behalf, and elected to do so 12. The applicant provided the following statement with his request for discharge under the provisions of Army Regulation 635-200, chapter 10: a. He enlisted with the intent of starting a career. He completed 11 years of education without issue and had no civilian convictions prior to joining the Army. He received a Bronze Star with oak leaf cluster for his service in Vietnam and he was promoted from E-2 to E-4 within one year. b. He went AWOL because he could not care for his family on an Army salary. He was not being paid and the finance office informed him that his account was overdrawn by $400. He could not pay rent or buy food for his pregnant wife. His wife was not receiving an allotment because the name listed on his marriage license did not match the name he used in Army. He went to court, but was unable to get the marriage license revised. He applied for welfare, but he was denied. He contacted the Red Cross, but he received no assistance. He received $30 from the Army Emergency Relief fund and he was able to pay rent for a week, so he went AWOL to get a job. He learned cement masonry and drove trucks to support his wife, three children, and in-laws. 13. On 21 February 1973, the Acting Commander, Personnel Control Facility, Headquarters Command, US Army Field Artillery Center and Fort Sill, recommended disapproval of the applicant’s request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and stated the applicant's length of AWOL did not warrant favorable consideration. 14. On 23 February 1973, the Commander, Headquarters Command, US Army Field Artillery Center and Fort Sill, recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10. He noted that the Morning Report establishing the applicant’s AWOL status was incomplete and admissibility of such evidence in a court-martial is questionable. 15. On 6 March 1973, the separation approval authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, Chapter 10. He directed issuance of an Undesirable Discharge Certificate. 16. On 6 March 1973, the applicant was discharged. His DD Form 214 shows he completed 1 year, 8 months, and 1 day of net service and 10 months and 25 days of foreign and/or sea service. His DD Form 214 also shows in: a. block 11c (Reason and Authority), in part – Army Regulation 635-200, Chapter 10, Separation Program Number (SPN) 246; b. block 13a (Character of Service) – Under Other Than Honorable Conditions; c. block 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – * National Defense Service Medal * Vietnam Service Medal * Bronze Star Medal with "V" Device * Republic of Vietnam Campaign Medal with Device (1960) * one overseas service bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14) d. block 26a (Non-Pay Periods Time Lost) – * 1 December 1969 to 24 March 1970 * 1 June 1970 to 3 June 1970 * 11 June 1970 * 25 June 1970 to 29 June 1970 * 8 July 1970 to 2 February 1973 e. block 30 (Remarks), in part – Vietnam Service: 20 September 1968 to 6 August 1969. 17. The Army Review Boards Agency (ARBA) psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documents, the available military personnel records and the VA electronic medical record (Joint Legacy Viewer-JLV). No hard copy military medical records or applicant-provided civilian medical documentation were provided for review. Review of the applicant’s available military personnel records indicates that he served in Vietnam from 20 September 1968 to 6 August 1969, participating in four campaigns. He was separated from the Army on 6 March 1973 with an under other than honorable conditions discharge. His misconduct consisted of absenting himself without leave from 8 July 1970 to 3 February 1973. The VA electronic medical record (JLV) contains no information regarding the applicant. The applicant has provided no civilian medical documentation for review. Hard-copy military medical records were not provided for review. Given the lack of medical documentation, the ARBA psychiatrist can make no decision regarding medical mitigation at this time. However, the Agency psychiatrist will gladly revisit the issue of medical mitigation should the applicant provide medical documentation of any behavioral health condition related to his time in service, to include PTSD. BOARD DISCUSSION: 1. The Board determined the available records are sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the PTSD claim and the review and conclusions of the ARBA psychiatrist. The Board found insufficient evidence of in- service mitigating factors and concurred with the conclusion of the medical advising official regarding the lack of in-service or post-service medical records substantiating his PTSD claim. The Board found the applicant provided insufficient evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections described in Administrative Note(s) below. 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: Other than the corrections described in Administrative Note(s) below, 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 otherwise insufficient as a basis for correction of the records of the individual concerned. 9/17/2020 X CHAIRPERSON 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 was awarded or authorized the following awards not listed on his DD Form 214: * four bronze service stars to his previously-issued Vietnam Service Medal * Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation * Republic of Vietnam Gallantry Cross with Palm Unit Citation REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. 4. Army Regulation 600-8-22 (Military Awards) provides Army policy, criteria, and administrative instructions concerning individual and unit military awards. One bronze service star is authorized with the Vietnam Service Medal for each campaign during which a member was assigned or attached to and present for duty with a unit during the period in which it participated in combat. 5. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register), in effect at the time, listed the awards received by units serving in Vietnam. This pamphlet shows 25th Infantry Division and its subordinate units were awarded the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation for the period 1 January 1966 to 21 January 1970 by Department of the Army General Orders Number 51, dated 1971. 6. Department of the Army General Orders Number 8, dated 19 March 1974, confirmed award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command, and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam, and its subordinate units during the period 20 July 1965 to 28 March 1973. //NOTHING FOLLOWS//