ARMY BOARD FOR CORRECTION OF ILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 September 2019 DOCKET NUMBER: AR20180006876 APPLICANT REQUESTS: reconsideration of request to upgrade his under other than honorable conditions discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Self-authored Department of Veterans Affairs Statement in Support of Claim • DA Form 8-274 (Medical Condition Physical Profile Record dated 13 May 1967 • DA Form 8-274 dated 15 September 1967 • DD Form 214 (Report of Transfer or Discharge) 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 AR20050014853 on 31 May 2006. 2. The applicant states that he is requesting the Board to reconsider the application to upgrade his under other than honorable conditions discharge to a general under honorable conditions discharge. a. He deployed to Vietnam in the height of the war and experienced extensive combat. While on a combat patrol in the central highlands of Vietnam, the patrol came upon adverse terrain and had to use jungle vines to traverse it. The applicant attempted to cross the terrain with the use of a vine at which time it broke. He fell ten feet to the ground. He was able to continue the patrol, but a time later when he urinated he noticed that he had blood in his urine. He notified the medic, he was then medically evacuated and flown to Pleiku for treatment. He was later moved to a hospital in Yokohama, Japan and was hospitalized for 10 to 11 months. Around Christmas he was sent home on 30 days leave, where he was diagnosed with Typhoid Fever and went into a coma for 18 days in a hospital in Brownsville, TX. He was moved from this hospital to a hospital at Fort Sam Houston, TX. The applicant was later reassigned to an infantry unit at Fort Hood, TX. The unit did not accept his profile, he refused to march or wake up at the prescribed time. He then became a discipline problem, which caused his commanding officer to give him an Article 15 for not complying with the rules and regulations. He then went absent without leave (AWOL) and was placed in the stockade for 60 days. He was cleared medically and was presented with some paperwork which he was told to just sign. He was then discharged from the Army and sent home. b. After he returned home, he began to consume alcohol and became depressed, he would sit around and cry for hours. The applicant’s father took him to a rehabilitation center, where he was able to get sober. He got married and worked full time as a truck driver and part-time as a car salesman. His brother was arrested for drug possession and he was arrested for conspiracy. Over the past 20 years, he has not received so much as traffic violation or any other moral problems. He started to receive mental health treatment at the Veterans Administration (VA), but that later stopped. 3. The applicant provided: a. DA Form 8-274 (Medical Condition Physical Profile Record) dated 13 May 1967, (form not very legible), stated the applicant was diagnosed with chronic urethritis and prostatitis, not responding to treatment. In accordance with (IAW) paragraph 3-17i (Genitourinary System – Urethritis, chronic), Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness), this condition renders a member unfit for further military service. b. DA Form 8-274 dated 15 September 1967, stated the applicant was returned to duty with permanent assignment limitations due to hematuria manifested by varying amount of red blood cells (RBC) in urine secondary to prolonged physical exertion. Limitations were: • no prolonged strenuous physical activity • no assignment requiring prolonged handling of heavy materials including weapons • no overhead work • no pull-ups or push-ups 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (AR) on 4 November 1965. b. He served in Vietnam for the period of 15 September 1966 to 18 June 1967. c. Special Court-Martial Order Number 53, the applicant was charged with two specifications of absent without leave (AWOL). The sentence was confined to hard labor for 3 months, forfeiture of $68 per month for 3 months and reduced to private (PVT)/E-1. The sentence was adjudged on 6 December 1967 and approved on 11 December 1967. d. Summary Court-Martial Order Number 2, the applicant was charged with one specification of AWOL. The sentence was for hard labor for 14 days, forfeiture of $60 per month for 1 month. The sentence was adjudged on 17 February 1968 and approved on 17 February 1968. e. On 24 June 1968, the applicant’s unit commander initiated a request for him to be barred from reenlistment in the RA for: • frequent counseling and close supervision • hostile attitude toward normal duties • reacts against all military authority • military appearance, sanitary habits, maintenance of clothing and equipment and military bearing below expected standards • three Article 15s for AWOL • conduct and efficiency unsatisfactory f. On 24 June 1968, the applicant acknowledged the bar to reenlistment and elected not to make a statement. g. On 17 July 1968, the bar to reenlistment was approved. h. Special Court-Martial Order Number 27 dated 23 July 1968, the applicant was charged with two specifications of without proper authority absented himself from his unit. The applicant plead guilty to the charges. The sentence was confinement to hard labor for 6 months, forfeiture of $90 per month for 6 months and reduced to the lowest enlisted grade of private (PVT)/E-1. The sentence was adjudged on 22 July 1968. i. On 23 July 1968, the convening authority approved the sentence, only so much of the sentence as provided for forfeiture of $90 per month for 6 months and reduction to the lowest enlisted grade of PVT/E-1 and will be duly executed. j. Special Court-Martial Order Number 353 dated 18 March 1969, the applicant was charged with two specifications of without proper authority absented himself from his organization. The applicant plead guilty to the charges. The sentence was confinement to hard labor for 6 months and forfeiture of $70 per month for 6 months. The sentence was adjudged on 18 March 1969. k. On 18 March 1969, the convening authority approved the sentence, the execution of that portion adjudging confinement for 6 months, is suspended for 6 months. At which time unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action or it will be remitted effective upon the applicant’s date of discharge from the service and will be duly executed. l. The complete facts and circumstances surrounding the applicant’s separation under the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability) are unavailable for the Board to review. m. After consultation with legal counsel on 19 March 1969, the applicant acknowledged: • he was advised by counsel of the basis of the separation action • he waived consideration by a board of officers • he waived personnel appearance before a board of officers • he did not submit statements in his own behalf • he waived representation by counsel • he understood he may expect to encounter substantial prejudice in civilian life • he may be ineligible for many or all benefits as a veteran under both Federal and State laws n. Special Court-Martial Order Number 380 dated 26 March 1969, the suspended execution of the approved sentence to confinement at hard labor for 6 months that was adjudged on 18 March 1969 and not subsequently modified was vacated. The unexecuted portion of the sentence to confinement at hard labor will be duly executed. The confinement will be served. o. On 28 March 1969, a mental hygiene consultation was completed that stated the applicant was diagnosed with passive aggressive personality. Due to the lack of success of rehabilitation efforts it was recommended the he be eliminated from the service under the provisions of AR 635-212. p. On 4 April 1969, a review of medical and mental examinations was provided that stated the applicant was physically and mentally fit for duty without profile limitations IAW AR 40-501. There were not defeats which contributed to the misconduct. q. DD Form 493 (Extract of Military Records of Previous Convictions) dated 9 April 1969, showed the applicant had a previous conviction for two specifications of AWOL on Special Court-Martial Order Number 353, sentenced adjudged on 18 March 1969. r. DD form 493 dated 10 April 1969, showed the applicant had a previous conviction for two specifications of AWOL on Special Court-Martial Order Number 53, sentenced adjudged on 6 December 1967. s. On 10 April 1969, the applicant was notified by his unit commander of the intent to separate him from the service under provisions of paragraph 6a (Unfitness) (1), AR 635-212 due to three Special Courts-Martial and one Summary Court-Martial with total days of AWOL as 298. t. There are no documents available that show the applicant acknowledged the notification of separation or his election of rights. u. On 10 April 1969, the applicant’s unit commander initiated separation action under the provisions of paragraph 6a (1), AR 635-212 and recommended an undesirable characterization of service. v. On 11 April 1969, the applicant’s battalion commander recommended approval of the separation with an undesirable characterization of service. w. On 23 April 1969, the separation authority approved the discharge under provisions of AR 635-212 with an undesirable characterization of service. x. Special Court-Martial Order Number 543 dated 24 April 1969, stated the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended for 6 months at which time unless the suspension is sooner vacated, the suspended portion of the sentence will be remitted without further action. y. He was discharged from active duty on 2 May 1969 under the provisions of AR 635-212 with an under other than honorable conditions characterization of service. His DD Form 214 shows that he completed 2 years, 5 months, and 14 days of active service with 308 lost days. 5. The applicant applied to the Army Board for Corrections of Military Records and on 31 May 2006, his application for an upgrade of his discharge was denied. 6. By regulation AR 635-212, provides procedures and guidance for eliminating enlisted personnel who are found to be unfit or unsuitable for further military service. An individual is subject to separation under the provisions of unfitness for frequent incidents of a discreditable nature with civil or military authorities. 7. In reaching its determination, the Board can consider the applicant’s petition and hisservice record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include service in Vietnam, the frequency and nature of his misconduct and the reason for his separation. The Board found that the applicant was remorseful with his application and provided a statement regarding his conduct and achievements post-service. demonstrating he understands his actions were not that of all Soldiers. Based on a preponderance of evidence to include his wartime service and his conduct postservice, the Board agreed an under honorable conditions (General) character of service is warranted. 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 a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 2 May 1969 showing his character of service as under honorable conditions (General). X 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) 635-200 (Personnel Separations – Enlisted Personnel), 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. Where a member has service faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks he may be furnished an honorable discharge. b. Paragraph 1-9e (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, unsuitability, homosexuality, or security the specific basis for such separation will be included in the individual’s military personnel record. 2. Army Regulation 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 6a (Unfitness) (1), states An individual is subject to separation under the provisions of unfitness for frequent incidents of a discreditable nature with civil or military authorities. b. Paragraph 4, states an individual separated by reason of unfitness will be furnished an undesirable discharge certificate except that an honorable or general discharge certificate may be awarded if the individual being discharged has been awarded a personal decoration or if warranted by the particular circumstances in a given case. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 the Military Department. 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 courtmartial: it also applies to other corrections, including changes in the 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, 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 upgrade service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006876 ABCMR Record of Proceedings (cont) AR20180006876 1 9 1