ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180016514 APPLICANT REQUESTS: upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two letters of support * State Department of Veterans Affairs (VA) Letter * U.S. Army Reserve (USAR) Chaplain's letter * Letter from the Office of the Inspector General (IG), 5th Infantry Division * Special Orders (SO) Number 234 * State Vietnam Veterans Bonus Board letter with fact sheet * Community College letter * DD Form 259A (Bad Conduct Discharge Certificate) * SO Number 7 * Memorandum, Subject: Request for Appellate Defense Counsel * DD Form 490 (Verbatim Record of Trial) with associated documents * VA Letter * VA Rating Decision FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he became absent without leave (AWOL) after serving in Vietnam. On his return home from Vietnam, he was mentally unable to cope with the stress; because of this, he would take off to get away from what he was feeling. He spent 24 months in Vietnam and should have received help for post-traumatic stress disorder (PTSD); had he received such help, he would not have gone AWOL. He loved the Army and, if he could have, he would have stayed until retirement eligibility. 3. The applicant provides: a. Letters of support from his two sisters that essentially describe the change in the applicant's behavior after his return from Vietnam. b. Letter from a State VA office, dated 5 November 1969, addressed to the applicant's spouse, stating a county Veterans Service Officer was willing to help her. c. Letter from a USAR Chaplain, dated 18 November 1969 and addressed to the 5th Army IG; it stated, in effect: * He was writing on behalf of the applicant's spouse; the applicant served two tours in Vietnam and the chaplain believed an injustice had occurred * The applicant's unit listed him as AWOL; the applicant had known medical problems, to include anxiety symptoms * At the time of the letter, the applicant was being detained by civil authority because he was caught shooting game out of season; this charge was further aggravated when the applicant walked out of the county jail * The applicant's wife brought him to a VA hospital, who, in turn, turned him over to civil authority; the county has refused to provide the applicant any medical treatment d. Letter from the 5th Infantry Division IG, dated 4 December 1969 and addressed to the applicant's spouse, essentially stated: * They were responding to the USAR chaplain's letter; on 28 November 1969, the applicant arrived at the Special Processing Detachment on Fort Carson, CO; he was expected to remain there for about another 21 days, pending the completion of his special court-martial trial for AWOL * The IG interviewed the applicant and determined he was receiving proper care; the applicant was coherent and expressed a desire to "get his problems straightened out" * The applicant did appear nervous about the possible results of his court- martial trial and stated he was having stomach pains, which he attributed to a previous ulcer; based on the applicant's nervousness and stomach pains, the IG had his unit make appointments for him at the Mental Hygiene Clinic e. Letter from a State Vietnam Veterans Bonus Board, dated 12 March 1973, which offered guidance on how to obtain a Vietnam Veterans Bonus application, described how the board was processing applications, and detailed the board's criteria for the bonus. f. A letter from a community college, addressed to the applicant and dated 14 January 1974, showing he was accepted for the 1974 Spring term. g. Memorandum, dated 18 September 1970, reflecting the applicant's election not to be represented by an appellate defense counsel before the U.S. Army Court of Military Review. h. DD Form 490, dated 22 July 1970, showing a verbatim transcript of the applicant's special court-martial, along with associated documents. i. VA letter, dated 19 December 2018, and VA Rating Decision; both show VA granted the applicant a 50 percent disability rating for service-connected PTSD. The rating's effective date was 16 August 2018. 4. The applicant's service records show: a. The applicant enlisted into the Regular Army on 26 October 1960 for a 3-year term. On 9 November 1962, he was honorably discharged so he could immediately reenlist. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showed he completed 2 years and 13 days of his 3-year enlistment contract; he was not awarded or authorized any awards. The applicant reenlisted into the Regular Army on 10 November 1962 for 6 years. Orders subsequently assigned him to Germany; he arrived on 25 October 1963. b. On 9 February 1964, while stationed in Germany, General Orders (GO) awarded the applicant the Army Good Conduct Medal (1st Award) for the period 8 February 1961 to 8 February 1964. c. On 1 February 1965, while still assigned in Germany, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for dereliction of duties by failing to turn in required property documents. d. On 29 May 1965, the applicant completed his tour in Germany; orders reassigned him to Fort Bragg, NC, and he arrived on 13 July 1965. On 27 September 1965, a special court-martial, convened at Fort Bragg, convicted him of AWOL from 8 until 19 September 1965 (11 days). The court sentenced him to forfeit $45 per month for 3 months and reduction in grade to private (PV1)/E-1. On 28 September 1965, the court-martial convening authority approved only so much of the sentence as allowed for the reduction to PV1 and forfeiture of $35 per month for 3 months. e. In or around February 1966, orders transferred him from Fort Bragg to Vietnam; he arrived in Vietnam on 9 March 1966. While in Vietnam, he was assigned to the 2nd Battalion, 16th Infantry Regiment. On 6 June 1966, his unit awarded him the Combat Infantryman Badge (1st Award). f. On 8 February 1967, GO awarded the applicant the Army Commendation Medal with "V" Device for heroism on 25 November 1966; the applicant braved incoming enemy mortar fire to move all of the wounded Soldiers from the battlefield to the battalion aid station. g. On 8 May 1967, the applicant completed his tour in Vietnam. Orders reassigned him to Fort Hood, TX; he arrived on 15 June 1967. On 7 September 1967, his battalion commander commended him on being selected as the Battalion's Outstanding Soldier of the Quarter. h. In or around January 1968, orders transferred the applicant from Fort Hood to Vietnam; he arrived on 15 March 1968 and was assigned to the 3rd Battalion, 39th Infantry Regiment. i. On 20 August 1968, while serving in Vietnam, the applicant was honorably discharged so he could immediately reenlist. His service record does not include the associated DD Form 214. On 21 August 1968, he immediately reenlisted for 3 years. On or about 18 September 1968, the applicant transferred within country to the 9th Military Police Company. j. On 8 February 1969, GO awarded the applicant the Army Commendation Medal for meritorious service against a hostile force during the period March 1968 to February 1969. On 3 March 1969, he completed his second tour in Vietnam; orders reassigned him to Fort Lewis, WA, and he arrived on 10 April 1969. k. On 12 July 1969, the applicant's commander reported his suspicion the applicant had fraudulently obtained dependent travel pay and was living in government quarters with a woman who was not his wife. (1) The U.S. Army Criminal Investigation Command (CID) conducted an investigation and, as part of that investigation, interviewed the applicant's lawful spouse; she affirmed the following: * The applicant returned from Vietnam in March 1968 and, after a visit to his father's home, he moved his spouse and children to an apartment in Iowa; he stated he would move her household goods to the apartment, but that was the last time she saw him * In the first part of May 1969, she contacted the applicant's commanding officer because she could not obtain a dependent identification card and was not receiving her allotment; that was when the applicant started calling her * During the last week in June 1969, she and the applicant agreed she would travel to Fort Lewis; however, the applicant failed to provide travel funds for her and their children * In a phone call, the applicant said she should stay in until he signed for government quarters; she asked if the applicant had seen Ms. X__ X__, who lived near Fort Lewis; Ms. X__ X__'s brother had married the applicant's sister; the applicant replied he had not seen her * The applicant's spouse drove from Iowa to Fort Lewis; along the way, her car broke down, and when she was able to reach the applicant, he told her he had been granted 5 days leave to move her; she told him she would just continue her trip, despite car troubles; she eventually arrived at Fort Lewis * She found her way to the applicant's quarters and a sergeant living next door told her the applicant had been residing there with another woman; the sergeant said, at that time, the applicant was AWOL (2) The applicant's company commander provided a sworn statement to CID, essentially stating: * On his arrival to the unit in June 1969, he learned the applicant had gone on temporary duty (TDY) for school, but returned in 3 days because he was not qualified to attend; the commander was also told the applicant's spouse had accompanied him on TDY * The commander asked the applicant why he was away from work so much; the applicant claimed he was having marital and legal problems; his first wife had filed for non-support, and his second wife was in trying to obtain a divorce * The applicant stated his first wife was coming to Fort Lewis to "get their problems corrected"; she was expected between the 7th and 13th of July 1969 * On 10 July 1969, a loan company called the applicant's leadership, stating they would be repossessing the applicant's car due to non-payment; at the time, the commander realized the applicant was not at his place of duty * That same date, the unit clerk advised the commander the applicant's lawful wife was looking for the applicant; she had just arrived with their children * The wife told the commander she had not been getting support since April; she needed to return home, but lacked the funds to do so; the commander got her a loan * A unit chaplain told the commander that, on 10 July 1969, and prior to going AWOL, the applicant and Ms. X__ X__ had stayed with another family in they left there and were allegedly heading to (3) In a report of investigation, dated 19 February 1970, CID concluded the following: * On 9 April 1969, the applicant submitted an application for government quarters; on the form he listed Ms. X__ X__ as his spouse * On 11 April 1969, the applicant presented a travel voucher to the supporting Finance office; the voucher was approved for $295.68 * On 16 April 1969, the applicant was assigned government quarters, and from that date until on or about 12 July 1969, the applicant wrongfully cohabited with a woman who was not his wife (Ms. X__ X__) * On 12 July 1969, (the same day his lawful spouse arrived) the applicant's unit listed him as AWOL, and dropped him from Army rolls on 12 August 1969 (the applicant's unit later showed the starting date of AWOL as 10 July 1969); the applicant remained absent until 8 October 1969 * On 21 November 1969, the civil authority released the applicant to military control; he was transferred to the Fort Carson Special Processing Detachment * On 9 December 1969, the applicant left the Special Processing Detachment and went AWOL; the applicant was still AWOL on the date of the report l. On 18 March 1970, civil authority arrested the applicant within Washington state and returned him to Fort Lewis. On 12 May 1970, the applicant's Fort Lewis commander preferred court-martial charges against him for the following UCMJ violations: * Two specifications of AWOL (10 July until 15 November 1969 and 9 December 1969 until 18 March 1970) * One specification of signing a false official record (Application for Government Quarters) with the intent to deceive * One specification of preparing a travel voucher in which he fraudulently claimed dependent travel reimbursement for persons who were not his lawful dependents * One specification of stealing $295.68 from the government (based on the submission of a false travel voucher) m. Also on 12 May 1970, the applicant's commander transmitted the above- referenced court-martial charges and recommended trial by general court-martial. On 25 May 1970, at the direction of the court-martial convening authority, an officer conducted an investigation under Article 32 (Investigation), UCMJ; the purpose was to determine whether the applicant' charges should be referred to a general court-martial. The investigating officer (IO) provided the following remarks: * The applicant indicated he thought his divorce was finalized; as such, he assumed a common-law wife status with Ms. X__ X__; he later learned he had been misinformed * The applicant's lawful spouse traveled from Iowa to Fort Lewis, and arrived on or about 12 July 1969; based on her trip, the applicant was eligible for the travel pay and the dislocation allowance he had claimed in April 1969 * Based on the foregoing information, the IO recommended dropping the third and fourth charges (filing a false travel voucher and stealing $295.68 in government funds) * Because the applicant had falsely listed Ms. X__ X_ as his spouse on the housing application, the IO recommended referring this and the AWOL charges to a special court-martial empowered to adjudge a bad conduct discharge n. On 22 July 1970, a special court-martial, authorized to adjudge a bad conduct discharge, arraigned the applicant on two specifications of AWOL: 10 July until 15 November 1969 and 9 December 1969 until 18 March 1970, respectively. (The convening authority did not refer the false housing application charge for adjudication). (1) Contrary to his pleas, the court found him guilty of both charges. Prior to sentencing, the applicant testified in his own behalf; he indicated his AWOLs resulted from his marital and financial difficulties; he stated he was "just mentally unable to cope" with all that was happening. Members of the applicant's leadership also testified and described his duty performance has outstanding; he was dependable, reliable, and handled increasing responsibilities exceptionally well. He also displayed exceptional drive and initiative. (2) At the conclusion of testimony, the court sentenced the applicant to a bad conduct discharge. On 4 September 1970, the court-martial convening authority approved the sentence, and submitted the record of trial for review by the U.S. Army Court of Military Review. o. On 15 September 1970, the applicant accepted NJP for operating his privately- owned vehicle without a post registration. p. The results of the U.S. Army Court of Military Review are not available for review, but, on 29 December 1970, a special court-martial order announced the appellate review had been completed, and directed the execution of the applicant's bad conduct discharge; on 7 January 1971, he was discharged accordingly. The applicant's DD Form 214 shows he completed 1 year, 8 months, and 15 days of his second reenlistment contract, with 7 years, 9 months, and 24 days of other service, and 233 days of lost time. He was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal * Combat Infantryman Badge * Republic of Vietnam Campaign Medal with Device (1960) * Army Commendation Medal * Army Good Conduct Medal (1st Award) q. On 15 August 2019, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. (1) The ARBA psychologist reviewed the applicant's service records, as well as the evidence submitted by the applicant. The applicant's military medical records were void of any psychological symptoms or concerns; VA documents showed the applicant was granted a 50 percent service-connected disability for PTSD. (2) The available records do not support the applicant's assertion that PTSD, or some other traumatic reaction, led to his periods of AWOL, and ultimately to his adverse discharge. This determination does not negate either the applicant's Vietnam service, or his post-service PTSD diagnosis. r. On 19 August 2019, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; he did not submit a response. 5. Although not required at the time, later versions of AR 635-5 (Separation Documents) mandated the inclusion of remarks when separating Soldiers received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 6. The applicant asserts, had he received proper treatment, he would not have gone AWOL; he attributes combat-related PTSD as being the cause of the misconduct that led to his bad conduct discharge. a. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. b. While not negating the applicant's combat service and the VA's award of a service-connected disability for PTSD, an ARBA psychologist found the applicant's records did not support his assertion that PTSD, or other traumatic reaction, led to his adverse discharge. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion 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 award of an ARCOM- V, the frequency and nature of his misconduct, the reason for his separation and whether to apply liberal consideration of clemency. The Board considered his post- service diagnosis of PTSD and the conclusions of the medical advising official that did not find mitigation for his misconduct. The Board found the applicant provided letters of reference in support of a clemency determination and found them to be compelling. Based on a preponderance of evidence, the Boar determined that the character of service the applicant received was too harsh and that a discharge upgrade was appropriate. The Board also concurs with the administrative correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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: In addition to the corrections in the Administrative Note(s) that follow, 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 amending his DD Form 214 for the period of service ending 7 January 1971 to reflect in item 24 (Character of Service) – “General, under honorable conditions”. 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): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of DD Forms 214. It stated the DD form 214 was the most vital document a separating Soldier would receive; as such, it was of paramount importance that the information be complete, accurate, and in accordance with authorized entries. a. Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) was to list awards and decorations given during the Soldier's entire military service. b. Item 30 (Remarks) was to include the period served in Vietnam; references for dates of service include the DA Form 20 (Enlisted Qualification Record). 2. The applicant's DA Form 20 shows two entries affirming the applicant's Vietnam service. The first period (9 March 1966 to 8 May 1967) would have been listed on his DD Form 214, ending 29 August 1968; this document is not available in his service record. The second tour (5 March 1968 until 3 March 1969) concluded during the period of his last DD Form 214, ending 7 January 1971. 3. AR 600-8-22 states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign; a silver service star is awarded in place of five bronze service stars. Recognized campaigns for Vietnam include: * Vietnam Counteroffensive (25 December 1965 to 30 June 1966) * Vietnam Counteroffensive, Phase II (1 July 1966 to 31 May 1967) * Tet Counteroffensive (30 January 1968 to 1 April 1968) * Vietnam Counteroffensive, Phase IV (2 April 1968 to 30 June 1968) * Vietnam Counteroffensive, Phase V (1 July 1968 to 1 November 1968) * Vietnam Counteroffensive, Phase VI (2 November 1968 to 22 February 1969) * Tet 69 Counteroffensive, 1969 (23 February 1969 to 8 June 1969) 4. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Orders (DAGO) Number 43, dated 1970, awarded the Valorous Unit Citation to the 3rd Battalion, 39th Infantry Regiment for the period 6 to 12 May 1968. b. DAGO Number 59, dated 1969, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class to units of the 9th Infantry Division (including the 3rd Battalion, 39th Infantry Regiment and 9th Military Police Company) for the period 19 December 1966 to 28 June 1969. c. DAGO Number 53, dated 1970, awarded the Republic of Vietnam Civil Actions Honor Medal, First Class to the 2nd Battalion, 16th Infantry Regiment for the period 12 July 1965 to 7 April 1970. c. All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 5. As a result, amend his DD Form 214, ending 5 February 1970 as follows: a. delete the Vietnam Service Medal and the Army Commendation Medal. b. add: * Army Commendation Medal (2nd Award) and "V" Device * Vietnam Service Medal with one silver service star and two bronze service stars * Valorous Unit Citation * Republic of Vietnam Civil Actions Honor Medal, First Class (2nd Award) * Republic of Vietnam Gallantry Cross with Palm c. In item 30 (Remarks) enter the comment: "Service in Vietnam from 9 March 1966 to 8 May 1967, and from 5 March 1968 to 3 March 1969." REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) stated an honorable discharge was a separation with honor. Issuance of an honorable discharge was conditioned upon proper military behavior and proficient duty performance. b. Paragraph 1-9e (General Discharge), stated a general discharge is a separation from the Army under honorable conditions. It was issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 (Dishonorable and Bad Conduct Discharges) outlined the steps to be taken for the separation of Soldiers who had been convicted by courts-martial and for whom the punishment included a punitive discharge. Paragraph 11-2 (DD Form 259A (Bad Conduct Discharge)) stated a member was to be given a bad conduct discharge only pursuant to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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 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 on the basis of 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. 6. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. Effective with Interim Change Number 1, dated 2 October 1989, separating Soldier who received a less than honorable character of service were required to have item 18 (Remarks) show the following comment: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." ABCMR Record of Proceedings (cont) AR20180016514 10 1