ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 December 2019 DOCKET NUMBER: AR20180016783 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * One-page printout from the Vietnam Veterans Memorial Virtual Wall website 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 (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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC79-01259 on 11 April 1979. 3. The applicant states: * he experienced blatant racism and he was not the same after his company got wiped out * he believes his discharge should be upgraded because the draft was not fair at all * they chose the poor people to die; if you went to college you did not have to go * the draft dodgers that went to Canada got complete exoneration * he experienced extreme racism in the Army and he was assaulted by a drill sergeant * in December 1968, his company got wiped out * they were supposed to prepare the area with artillery but they did not * the North Vietnamese Army was right there waiting on them and they wiped out his company resulting in the death of a friend * they made a lot of mistakes that cost people their lives; it was an unjust war that cased countless people to lose their lives * he did not disobey a direct order, he was guilty of assault against a sergeant major (SGM); to make it stick, the SGM added that charge * an officer pulled a gun on his friend and shot at him but nothing happened to that officer * his friend was allowed to resign for the good of the service but the officer who pulled the gun on him received no punishment * he hopes the Board will reconsider and give him a break; he has suffered enough and he appeals to the Board's moral conscience to help him 4. The applicant was inducted into the Army of the United States on 17 April 1968. 5. The applicant's DA Form 20 (Enlisted Qualification Record) shows he was absent without leave from 4 July to 17 July 1968. 6. The applicant's DA Form 20 shows he arrived in Vietnam on 5 November 1968. Item 40 (Wounds) of his DA Form 20 shows he sustained hearing loss to both ears on 3 December 1968. Item 41 (Awards and Decorations) of the DA Form 20 shows he was awarded the Purple Heart by orders dated 12 December 1968, issued by the 1st Cavalry Division. 7. On 16 May 1969, the applicant was found guilty by a general court-martial of unlawfully striking a Major on the face with his fist and of disobeying a lawful order issued by his superior commissioned officer. The sentence consisted of reduction to the grade of E-1, a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. 8. On 3 September 1969, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 9. On 14 October 1969, the sentence having been affirmed and the provisions of Article 71(c), Uniform Code of Military Justice, having been complied with, the bad conduct discharge was ordered executed. 10. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 3 November 1969 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 (Dishonorable and Bad Conduct Discharge), with issuance of a Bad Conduct Discharge Certificate. 11. The applicant provided a one-page printout from the Vietnam Veterans Memorial Virtual Wall website, pertaining to his friend who was killed in action on 3 December 1968. The applicant states that he was with his friend when he died and it blew his mind. 12. On 7 October 2019, the Army Review Boards Agency psychologist/medical advisor provided a medical advisory opinion. The advisory found no evidence of a behavioral health condition at the time of the applicant's service which would mitigate the misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration 13. The applicant was provided a copy of the advisory opinion on 14 October 2019 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the fact that he was found guilty by a general court-martial of unlawfully striking a “Major” on the face with his fist and of disobeying a lawful order issued by his “superior commissioned officer.” 2. While the applicant contends that he was a victim of racial prejudice, he has not provided any evidence to support his contention and the Board did not find any in his records. In accordance with regulation, the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. The applicant’s medical records were reviewed by a medical professional. There was no evidence of a behavioral health condition found at the time of the applicant's service which would mitigate the misconduct that led to his discharge. 4. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 5. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 11 of the regulation in effect at the time states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 3. Army Regulation 635-200, currently in effect, provides in: a. 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. b. Paragraph 3-7b, 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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. 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 under other than honorable conditions 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 their service. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the DRBs and 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20180016783 6 1