ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180013565 APPLICANT REQUESTS: * an upgrade to his under other than honorable conditions discharge * his service number be reflected on his DD Form 214 * an amendment to his DD Form 214 to reflect his awards, to include a Purple Heart he should have received 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) * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Email correspondence originated by the applicant 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, while he was on leave during his combat tour in Vietnam, he was informed of his father's terminal illness and likelihood of passing in the very near future. Knowing that he was approaching the end of his leave, he requested an extension of his leave, with the intention to assist with planning his father's funeral. His leave was denied, so he requested a provisional pass to extend his leave. With one day remaining before his leave ended, the applicant then went to the Military Police Headquarters in Omaha, Nebraska. Upon arrival, he was immediately apprehended. 3. The applicant provides two emails he sent to Mr. X X , Paralyzed Veterans of America representative, which state, in effect: 1. a. He has requested his combat records several times only to be told answers like "they burned in the St Louis fire." He also mentions an individual, with the same name as his that reached out to him via a Facebook (FB) friend request. The individual stated he was given the name in the Witness Protection Program and that he resides in Wisconsin; however, FB shows him residing in Jamaica. The applicant states, this same individual's FB profile shows his Vietnam time during the same time as his own, eventually questioning the possibility that his own combat records and achievements lie there. The applicant respectively requested assistance in getting only what he has earned and, in the event of his passing, at the least, his wife and children deserve his Purple Heart for the sacrifices he has made for his country. b. A military police historian out of Maryland claims the applicant's unit, 482d, did not exist and now refuses to take him seriously because the unit is not listed in the "order of battle." He is getting his paperwork ready for Senator X X . 4. A review of the applicant's service record shows: a. DA Form 47 (Record of Induction) shows he was inducted in the Army of the United States on 12 April 1971 with a social security number instead of a service number. b. His DA Form 20 (Enlisted Qualification Record) does not show a service number. He was assigned to the 482nd Military Police Battalion, 3rd Brigade, 1st Cavalry Division in Vietnam from on or about 25 August 1971 through on or about 29 February 1971 (a day prior to being listed as AWOL/Deserter). The form does no show he was wounded or awarded the Purple Heart. The DA Form 20 shows he was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal * Sharpshooter Marksmanship Qualification Badge with Auto Rifle (M-16) * Marksman Marksmanship Qualification Badge with Pistol (.45) * Expert Marksmanship Qualification Badge with Grenade c. The complete facts and circumstances surrounding his separation are not available for review. d. His DD Form 214 reflects he was discharged on 17 October 1972, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 and discharged with an under other than honorable conditions. e. He completed 1 year and 2 days of total active service and had 184 days of lost time: 2 March 1972 to 2 March 1972; 24 March 1972 to 19 September 1972; and 15 October 1972 to 17 October 1972. His DD Form 214 also shows in: * Item 2 (Service Number) is blank * Items 5a (Grade, Rate or rank) and 5b (Pay Grade) show PV1/E-1 * Item 12h (Effective Date of Pay Grade) - 6 October 1972 * Item 15 (Reenlistment Code) - RE-1B, RE-3, RE-3B * Item 11c (Reason and Authority) - Chapter 10, For the Good of the Service * Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) Marksman Marksmanship Qualification Badge with Pistol (.45) 5. The applicant’s name is not listed on the Vietnam Casualty Roster. 6. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) states a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 7. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 12 March 1980. The ADRB determined the discharge was both proper and equitable and denied his request. 8. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined some relief is warranted. The applicant’s contentions were carefully considered. A review of his record shows he was awarded or authorized awards for his service in Vietnam, and individual weapons qualification; however, all of his decorations were not listed on his DD Form 214. 2. 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. The applicant contends his separation is related to reporting within one day of his leave ending after he attempted to extend his leave due to the terminal illness of his father. Based upon his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD; more likely related to his 184 days of lost time. Based on his offense of a criminal 1. nature, as well as his failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 3. His was inducted using a social security number. Therefore, no record of service number was recorded in his record, and not listed on his DD Form 214. His record is absent evidence showing he was wounded by enemy forces, the wound required treatment by medical personnel, and record in his medical records. He did not provide any evidence to support entitlement to a Purple Heart in the form of witness statements, medical records, and unit casually reports to name a few examples. 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: 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 ending 17 October 1972 by adding the following awards: * National Defense Service Medal * Vietnam Service Medal with two bronze service stars * Vietnam Campaign Medal (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Sharpshooter Marksmanship Qualification Badge with Auto Rifle (M-16) * Expert Marksmanship Qualification Badge with Grenade 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 upgrading the characterization of his discharge, awarding a Purple Heart, and adding a service number to his DD Form 214. 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. 1. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 of that regulation provides, in pertinent part, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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 (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. 4. Army Regulation 600-8-22 (Military Awards) provides that the Vietnam Service Medal is awarded to all members of the Armed Forces of the United States for qualifying service in Vietnam during the period 3 July 1965 through 28 March 1973. A bronze service star will be authorized for wear on the Vietnam Service Medal for participation in each credited campaign. Appendix B shows that during his service in 4. the Republic of Vietnam, participation credit was awarded for the following two campaigns: * Consolidation : 1 July – 30 November 1971 * Consolidation II: 1 December 1971 – 29 March 1972 5. 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. //NOTHING FOLLOWS//