ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180012792 APPLICANT REQUESTS: The applicant requests: * upgrade of his under honorable conditions discharge to an honorable discharge * award of the Purple Heart * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect: * his rank as private first class (PFC)/E-3 vice private one (PV1)/E-1 * his service in Vietnam APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Fifteen Photos * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), accepted 13 August 1971 * DD Form 214 for period ending 2 September 1971 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: a. He made a recent visit to the Veterans Administration (VA) office in Mount Vernon Missouri, he discovered there was an error on his DD Form 214 and much to his surprise they could not find any record of his time in Vietnam. There also is no record of him being shot in the left leg. It was not life threatening but there is still a large scar. He was told he should have received a Purple Heart, it's not of importance but he did earn it. The bigger issue is the error on his discharge which indicates that he received a general discharge under honorable conditions and he would like it changed to an honorable discharge. His DD Form 214 states he was discharged as a private one (PV1)/E-1 but it clearly should state he was a private first class (PFC)/E-3. b. He was young. Like many others, it was a difficult time in his life coming back from a war and not any of them understood and he never really looked at the discrepancies until his visit to the VA. It is very distressing to hear that there is no record of his time in Vietnam and he has hundreds of pictures showing he was there. He was assigned to the 4th Infantry, 1st Squadron, 10th Armored Cavalry (scouts) and the approximate time he was there was October 1969 - February 1971. He was also at Letterman General Hospital in San Francisco, CA and Fort McArthur, CA in 1971. c. He enclosed just a few of the pictures from his time in Vietnam but he has many more. He has more things in his possession that prove he was there if needed but he believes the Board will be able to clear this up for him. There comes a time in life when you need to ask for help and he is now 67 years old and Medicare does not cover very much of his medications for his health problems and he was told without this being cleared up he cannot receive the help he needs. He prays that someone could help him with this soon because right now he cannot get any of the help he needs. 3. On 30 September 1969, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. His record contains: a. Medical records, which show on 13 January 1970 and 21 February 1970, he was treated at the Ireland Army Hospital at Fort Knox, KY; on 20, 24, and 29 September 1970, he was treated at Army Post Office (APO) SF 96262, Vietnam; and on 23 December 1970, he was treated the 1st Squadron, 10th Cavalry dispensary. b. A DA Form 348 (Equipment Operator’s Qualification Record), issued 16 July 1970, which shows the entry "Instructed in Vietnamese road signs and traffic laws." c. A MACV (U.S. Military Assistance Command, Vietnam) Form 270, Malaria Debriefing Form, in which shows the applicant agreed to take certain medication for eight weeks following his departure from Vietnam; he agreed to take certain medication 30 days following his departure from Vietnam; he indicated that he received the necessary tablets and the form was endorsed by the applicant on 22 February 1971. d. A Medical Clearance Form states "Medical clearance will not be granted more than 72 hours nor less than 24 hours prior to departure of the unit to which assigned or attached. The form shows the applicant was assigned to Headquarters and Headquarters Troop, 1st Squadron, 10th Cavalry. On 22 February 1971, he was granted medical clearance. e. A Report of Psychiatric Evaluation, dated 4 August 1971. It stated: (1) The applicant had a long history of borderline social, vocational, and psychological adjustment prior to entering the military, but recently have become increased. He had no motivation to continue military service, earn an honorable discharge or in any way complete his present tour of duty. (2) The applicant had two psychiatric hospitalizations with one lasting approximately four weeks at Letterman General Hospital. The psychiatrists at this hospital recommended that the applicant be administratively separated. He recommended the same and concluded that the applicant would continue to be a serious liability to any unit responsible for him. (3) The applicant was diagnosed with passive aggressive personality that existed prior to service. He met the retention standards in Chapter 3, AR 40-501 (Medical Services – Standards of Medical Fitness) and that there was no psychiatric disease or defect which warranted disposition through medical channels. The diagnosis represented a character and behavior disorder within the meaning of Technical Bulletin (TB) Medical 15, AR 40-501, and AR 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability). The evaluation is signed by a medical corps officer in the mental hygiene clinic. 5. The applicant went absent without leave (AWOL) from 27 March 1971 and remained absent until 8 June 1971, while assigned to the Overseas Replacement, Fort Dix, NJ. . On 8 June 1971, the applicant was transferred from one hospital to Letterman General Hospital. 6. On 13 August 1971, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL): from 27 March 1971 and remained absent until 8 June 1971 and from 7 July 1971 and remained absent until 30 July 1971. His punishment consisted of forfeiture of pay, reduction to PFC/E-3, and 3 days restriction. Orders confirmed he was reduced to PFC, effective 16 August 1971. 7. In connection with his separation, the applicant was administered a medical examination and it was unremarkable regarding any injuries the applicant may have suffered during his period of service. 8. On 22 August 1971, the applicant’s immediate commander notified him that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-212, under the provisions of paragraph 6b for unsuitability. 9. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, waived consideration of his case and personal appearance before a board, and elected not to submit a statement in his own behalf. 10. The immediate commander’s recommendation he indicated that the specific reason for recommending the applicant be discharged is because of unsuitability, character and behavior disorders. He stated that discharge was deemed appropriate in view of the applicant’s personality disorder and he was not believed amenable to any form of punishment, retraining, or other forms of rehabilitation within the military. 11. The appropriate commander approved the recommendation for separation, directing the applicant be issued a General, Under Honorable Conditions Discharge Certificate. 12. On 2 September 1971, the applicant was discharged accordingly. His service was characterized as under honorable conditions with a General Under Honorable Conditions Discharge Certificate. He completed 1 year, 7 months, and 28 days of total active service this period. His DD Form 214 shows: * Item 5a (Grade, Rate, or Rank): PV1 * Item 5b (Grade): E-1 * Item 6 (Date of Rank): 16 August 1971 * Item 22c (Foreign and/or Sea Service: Blank * Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized): Blank * Item 30 (Remarks): 95 days lost time under Title 10 U.S. Code, Section 972 13. The applicant’s name was not found on the Vietnam Casualty Roster used by the Board of Correction of Military Records. 14. His DA Form 20, item 40 (Wounds) does not list any wounds. 15. There is no record of a Western Union Telegram indicating that the applicant was wounded while serving in Vietnam. 16. The applicant provides: * Fifteen Photos which show various Soldiers in several wooded/field type environment with tactical equipment, vehicles, and weapons * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ, shows on 13 August 1971, he accepted nonjudicial punishment (NJP) while assigned to the U.S. Army Personnel Confinement Facility, Fort Ord, CA for being AWOL from the U.S. Army Overseas Replacement Station, Fort Dix, NJ. * DD Form 214 for period ending 2 September 1971 which shows his discharge as under honorable conditions, his rank/grade as PV1/E-1, no entry for his Foreign Service, and no entry for awards and decorations 17. The applicant states during a recent visit to the VA office in Mount Vernon, MO, he discovered the following errors on his DD Form 214: no record of his Vietnam service; no record of his injury which makes him eligible for award of the PH; his discharge which indicates that he received a general discharge under honorable conditions and he would like it changed to an honorable discharge; and his rank as PV1/E-1 vice PFC/E-3. He is now 67 years old and Medicare does not cover very much of his medications for his health problems and he was told without this being cleared up he cannot receive the help he needs. a. The record shows the applicant enlisted at the age of 18 years old, he accepted one NJP for being AWOL on two occasions, which resulted in his reduction to PFC/E-3 with a date of rank of 16 August 1971 (same date of rank on his DD Form 214 for reduction to PV1/E-1), and he had 95 days lost due to AWOL. There is no record the applicant was reduced to PV1/E-1. b. There is evidence the applicant served in the Republic of Vietnam; however, his record is void of evidence that identifies the specific dates he served; his tour timeline is unknown. The medical records show he was treated at Fort Knox, KY, as late as 21 February 1970 and the medical clearance form indicated he should have departed Vietnam between the period 23 February 1971 and 25 February 1971. At this time the normal duration for a tour in Vietnam was 12 months. He completed 19 months and 28 days of his 36 months contractual obligation. 18. AR 635-212, paragraph 6b, provided that Soldiers would be discharged by reason of unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality. An honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 19. AR 635-200 (Personnel Separations – Enlisted Personnel) superseded AR 635-212 in November 1972, and was subsequently revised on 1 December 1976, based on a civil suit settlement. Later guidance mandated retroactive application of revised policies, attitudes, and changes in reviewing applications for discharge upgrades based on personality disorders. In addition, the policy was expanded such that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable. This rule was to be applied in all cases, except where there were "clear and demonstrable reasons" why a fully honorable discharge should not be given (i.e. conviction by a general court-martial or by more than one special court-martial). 20. In reaching its determination, the Board should consider the applicant’s petition, his service record, and his statement in accordance with the published Department of Defense guidance on equity, injustice, or clemency. 21. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that will be furnished each individual who is separated from the Army including active duty for training personnel with vital documentary evidence of his military service. It is important that information entered be complete and accurate. It states for item 5a (Grade, Rate or Rank), enter grade in which serving at the time of separation, indicating whether permanent or temporary; item 5b (Grade), enter pay grade; item 6 (Date of Rank), enter the date of rank for the grade shown in item 5a; and item 22c (Foreign and/or Sea Service), enter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR)." 22. AR 600-8-22 (Military Awards) states: a. Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. b. 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. Qualifying service included attachment to or assignment for one or more days with an organization participating in or directly supporting military operations. A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. During the period 22 February 1970 to 25 February 1971 there were three campaigns. c. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. d. Department of the Army General Orders Number 8, dated 1974, announced 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service to include service in Vietnam, records of his medical treatment to include hospitalizations, the nature of his misconduct, his pre-separation diagnosis, his discharge for unsuitability due to character and personality disorder and whether to apply liberal consideration. Based on a preponderance of evidence, to include the medical evidence in the applicant’s records, and the misconduct that led to his separation, the Board determined that the character of service the applicant received upon separation was too harsh and that an upgrade and restoration of his rank to PFC was warranted. The Board found insufficient evidence to determine that the applicant had been wounded as a result of hostile action. Based on the available records, the Board determined that there was sufficient evidence (DA Form 348, SF 600 and Medical Clearance) to show he was in Vietnam during the period 15 July 1970 and 22 February 1971. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 2 September 1971 to reflect: - In item 13a. (Character of Service) – “Honorable” vice “Under honorable conditions”; - in item 22c. (Foreign and/or Sea Service) – “00 – 07- 05” vice “00 years 00 months 00 days, and; - in item 30 (Remarks) – “Service in Vietnam 15 July 1970 to 22 February 1971.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to award of a Purple Heart or additional service in Vietnam. 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): Not Applicable 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 (AR) 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability), in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III - evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts). When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. 3. AR 635-200, which superseded Army Regulation 635-212, was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. Further, any separation for unsuitability based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. a. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. b. A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 4. AR 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, states in paragraph 3-7a, 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. 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 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 the applicant. 6. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that will be furnished each individual who is separated from the Army including active duty for training personnel with vital documentary evidence of his military service. It is important that information entered be complete and accurate. It states for: a. Item 5a (Grade, Rate or Rank), enter grade in which serving at the time of separation, indicating whether permanent or temporary and 5b (Grade), enter pay grade b. Item 6 (Date of Rank), enter the date of rank for the grade shown in item 5a. If the date of rank is different from date of appointment, enter date of appointment in item 30 (Remarks). If grade at the time of separation is not permanent, the permanent grade, date of appointment, and date of rank, if different from date of appointment, will be entered in item 30. c. Item 22c (Foreign and/or Sea Service), enter total active duty outside continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed, e.g., "Foreign and/or Sea Service (USAREUR)." 7. Army Regulation 600-8-22 (Military Awards) provides: a. The Purple Heart is awarded for a wound sustained in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment (not merely examination) by a medical officer, and the medical treatment must have been made a matter of official record. Award of the Purple Heart may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the service member's medical record that the extent of the wounds was such that they would have required treatment by a medical officer if one had been available to treat them. Examples of enemy-related injuries which clearly justify award of the Purple Heart are as follows: * injury caused by enemy bullet shrapnel or other projectile created by enemy action * injury caused by enemy placed mine or trap * injury caused by enemy released chemical, biological, or nuclear agent * injury caused by vehicle or aircraft accident resulting from enemy fire and/or concussion injuries caused as a result of enemy generated explosions b. 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. Qualifying service included attachment to or assignment for 1 or more days with an organization participating in or directly supporting military operations. A bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. During the period 22 February 1970 to 25 February 1971 there were three campaigns: * Vietnam Winter - Spring 1970, 1 November 1969 - 30 April 1970 * Sanctuary Counteroffensive, 1 May 1970- 30 June 1970 * Vietnam Counteroffensive Phase VII, 1 July 1970 - 30 June 1971 c. The Republic of Vietnam Campaign Medal with Device (1960) was awarded by the Government of Vietnam to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 1 March 1961 through 28 March 1973. Qualifying service included assignment in Vietnam for 6 months or more. Also eligible for this award are individuals who qualified for award of the Vietnam Service Medal or the Armed Forces Expeditionary Medal and served for less than six months of service. 8. Department of the Army General Orders Number 8, dated 1974, announced 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. ABCMR Record of Proceedings (cont) AR20180012792 9 1