BOARD DATE: 17 April 2020 DOCKET NUMBER: AR20180013945 APPLICANT REQUESTS: through counsel, his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 17 September 2018 * Exhibit A – Letters from Applicant's Counsel, dated 21 September 2018 and 10 October 2018 * Exhibit B – Military Records, including DD Form 47 (Record of Induction), dated 21 August 1966; DA Form 20 (Enlisted Qualification Record), dated 7 September 1966; and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 2 May 1968 * Exhibit C – Judgement and Order, Circuit Court of Franklin County, dated 14 August 2018 * Exhibit D – Medical Records, including Standard Form (SF) 601 (Immunization Record); SF 603 (Health Record – Dental); SF 88 (Report of Medical Examination), dated 31 August 1966; and DA Forms 8-275-3 (Clinical Record Cover Sheet), dated 17 April 1967, 21 May 1967, and 14 July 1967 * Exhibit E – Letters in support of the applicant, including two third party letters; a letter from Mercy Clinic Pulmonology and Sleep, dated 12 March 2018; a letter from Advent Medical Group, dated 13 March 2018; and a letter from a Licensed Clinical Social Worker (LCSW), dated 21 March 2018 * An article from St. Louis Today, dated 12 October 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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 there is no longer a basis for his discharge to be UOTHC. He requests the military record be corrected to show he has an honorable discharge. 3. Counsel states an upgrade to the applicant's service characterization is consistent with the interest of justice as outlined in Exhibit A: a. The applicant was discharged in May 1968, pursuant to Section VI, Army Regulation 635-206 (Personnel Separations ? Discharge ? Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), Separation Program Number (SPN) 284 "Convicted or adjudged by a civil court during current term of active military service." He pled guilty and was convicted of a crime which resulted in damage or loss of property less than $100.00 (Exhibit B). b. The Franklin County Circuit Court expunged his arrest, plea and conviction on 28 August 2018. Under Missouri law (610.140 Revised Statutes of Missouri [RSMo]), an order of expungement restores a person's rights and status to that which he or she occupied prior to such arrests, please and convictions as if such events never took place (Exhibit C). c. The National Personnel Records Center (NPRC) was named as a defendant in the applicant's expungement. Pursuant to 610.140 RSMo, NPRC was ordered to close and destroy all records in its possession related to his 1967 conviction. d. The applicant has never been able to receive Department of Veterans Affairs (VA) medical benefits or treatment for injuries and illnesses he sustained as a result of his service in Vietnam (Exhibit D). Having borne the sole responsibility for his required medical treatment and care, he has struggled financially his whole life. His disabilities have drastically limited his employment opportunities. e. It is in the interest of justice that his military record be corrected so that he may receive any appropriate benefits and care that a similarly situated disabled Vietnam Veteran would be entitled to. There is no longer a basis for his current discharge designation. 4. The applicant was inducted into the Army of the United States on 31 August 1966. Upon completion of his initial entry training, he was assigned to the 20th Engineer Battalion with service in Vietnam from 17 February 1967 through 24 May 1967. 5. The applicant was transferred on or about 24 May 1967, from Cam Ranh Bay, Vietnam to Fitzsimons General Hospital in the continental U.S., for ongoing treatment of Episcleritis in his right eye. 6. The applicant's commanding officer was notified on 24 January 1968 of the applicant's arrest by civil authorities. The applicant's service record includes a Federal Bureau of Investigations record that indicates he plead guilty to burglary (2nd degree) and was sentenced to two years of confinement in Franklin County, MO. 7. The applicant’s record is void of the facts and circumstances that led to his discharge. However, Special Orders Number 122, issued by Headquarters, U.S. Army Training Center and Fort Leonard Wood on 1 May 1968, indicates the applicant was separated from service on 2 May 1968. 8. The applicant's record contains a DD Form 214 that confirms he was discharged under the provisions of Army Regulation 635-206, SPN 284, by reason of his conviction by a civil court during his current term of active military service. He was issued a DD Form 258A (Undesirable Discharge Certificate) and his service was characterized as UOTHC. 9. Counsel for the applicant provides: a. Two third party letters of support (Exhibit E) written by the applicant's stepchildren that attest to his integral role as a father figure and provider. He instilled respect, good morals, and a strong work ethic. He is a man of exceptional moral character and integrity. He is supportive and uplifting to everyone he knows. He has never wavered from their mother's side despite his own battle with diabetes, lung disease, and the loss of his eye. He has helped her through physical and mental health issues. Now that she is losing her memory, he will be her main caretaker. They show great strength in overcoming health, financial, and family challenges together. The applicant served his country, lost his eye, and has shown great integrity in his personal and professional life. He should not be abandoned in his time of need. b. Three physician's memoranda (Exhibit E) that verify the applicant is under the treatment of a physician for multiple medical conditions to include idiopathic pulmonary fibrosis, chronic respiratory failure, post-traumatic stress disorder (PTSD), anxiety and depression. A licensed clinical social worker also confirms the applicant is law-abiding and a dependable, respectful caregiver for his aging wife. c. An article from St. Louis Today, on 18 October 2018, details the history of the applicant's experience after leaving Vietnam. (1) He left Vietnam because of an ongoing medical condition. He was a combat engineer clearing brush burned by Agent Orange, building roads and bridges, and manning bridges with a machine gun when he developed a serious eye infection. He required multiple surgeries. After being flown to Denver, CO for additional surgery, he was sent to Fort Leonard Wood, MO for recovery. (2) He came home on leave in October, 1967 and ended up with a crowd who robbed a concession stand at Meramec Caverns. He pled guilty to felony burglary. He was charged with two felonies, sent to prison for two years, and was separated from the Army under other than honorable conditions. (3) It ruined his life. He has worked odd jobs. He and his wife of 31 years have lived on disability and food stamps. He is on oxygen nearly 24 hours a day. He has lung disease and a non-working prosthetic eye. He is a disabled American veteran but to the Federal government, he is a convict who doesn't deserve medical benefits. (4) The article continues to explain the assistance being provided to the applicant in trying to upgrade his discharge characterization. His counsel is working pro bono in an attempt to right 50 years of wrong. At the time of the article, the applicant was hopeful one of Missouri's senators would intercede on his behalf. Due to his failing health, he feels he is running out of time. The article is available, in its entirety, in the application package. 10. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents including the ABCMR application as well as documents submitted by the applicant’s attorney. Based on the time of the applicant’s service, there are no records available in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), or Health Artifacts Image Management Solutions (HAIMS). The applicant does have medical documentation pertaining to chronic illnesses in the VA's Joint Legacy Viewer (JLV). However, due to the characterization of the applicant’s discharge from the Army there are no records of treatment for any particular condition or a determination of service connection for any condition. The following findings and recommendations are made based on the available documentation: The applicant enlisted in the Army on 31 August 1966. While serving a tour in Vietnam as a Combat Engineer, the applicant developed episcleritis in his right eye which ultimately led to his transfer from Vietnam to Fitzsimons General Hospital for definitive treatment on 24 May 1967. Following surgical intervention to treat his eye condition the applicant was transferred to Ft. Leonard Wood, MO to convalesce and recover. While at Ft. Leonard Wood the applicant left the installation without authorization and apparently robbed a business at Meramec Caverns in Missouri. On 24 January 1968 the applicant’s Chain of Command was notified that the applicant had been arrested by civil authorities for felony burglary. The applicant pled guilty to felony burglary and was sentenced to two years confinement in a jail in Franklin County, MO. The applicant received a discharge from the Army under other than honorable conditions on 2 May 1968. On 23 August 2018 the applicant successfully petitioned the Court in Franklin County, MO to expunge his criminal record. The felony charges were expunged, and the applicant’s civil rights were restored “as if the felony never occurred”. However, the expungement of the applicant’s civilian criminal record did not include relief for the Army’s finding that the applicant was AWOL at the time he was arrested. In view of the applicant’s current medical and behavioral health conditions which have been diagnosed after his separation from the Army, and with the application of liberal consideration, there is no medical reason to indicate a change in the characterization of his discharge. There are no records contained in the submitted documentation to indicate that any specific medical or psychiatric condition was a direct result of his service in the Army. Therefore, it is the opinion of the Agency Medical Advisor, based on the available information, that an upgrade in the characterization of the applicant’s discharge for medical reasons is not indicated at this time. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, counsel’s petition, the medical advisory, 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 and the reason for his separation. The Board considered the review and conclusion of the medical advising official. The Board considered the civil court documents provided by the applicant, the memoranda from physicians and the third party letters submitted in support of a clemency determination. Based on a preponderance of evidence, the Board determined that there is sufficient evidence to grant partial relief as a matter of clemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X 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 the applicant’s DD Form 214 for the period ending 2 May 1968 showing his character of service as general, under honorable conditions. 2. The Board further determined that 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 a discharge upgrade to honorable. 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, 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 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. 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. 3. Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of enlisted personnel for misconduct. A under other than under conditions discharge is normally appropriate for a Soldier discharged under this chapter. The regulation also provided that an undesirable discharge certificate will normally be furnished to an individual. 4. Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPN "284" was assigned to Soldiers under the authority of Army Regulation 635-206 by reason of "misconduct/convicted or adjudged by a civil court during current term of active military service." 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20180013945 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013945 7 ABCMR Record of Proceedings (cont) AR20180013945 6