ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20190000359 APPLICANT REQUESTS: upgrade of his undesirable discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 258A (Undesirable Discharge Certificate) 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 entered the Army at age 18, and served in Vietnam from March 1967 until March 1968. During his Vietnam tour, his mother became sick, so they sent him home; he returned to Vietnam after 30 days. In March 1968, he left Vietnam because his mother had died. After that he was assigned to Fort Sill, Oklahoma. He was supposed to be discharged in November 1968, but civilian law enforcement put him in jail for possession of marijuana; the civilian authority sentenced him to a year in an Oklahoma prison. While in prison, the Army sent someone with discharge papers for him to sign. They told him if he signed the undesirable discharge paperwork, his character of service would revert to honorable 6 months after his release from prison; this never happened. They also told him he could go home after his prison release; he signed the papers because he wanted to go home. He did not know he could request an upgraded character of service until someone at the Department of Veterans Affairs (VA) told him; he is requesting the upgrade to become eligible for VA benefits. 3. The applicant's service records show: a. He was inducted into the Army of the United States (AUS) on 18 October 1966 for 2-years of obligated active duty service; he was 18 years old. On completion of initial training, order transferred him to Vietnam; he arrived on 7 April 1967. Subsequent orders further assigned him to the 592nd Transportation Company; he arrived at his unit on 11 April 1967. b. Effective 21 April 1967, his chain of command in Vietnam promoted him to private first class (PFC)/E-3. On 21 June 1967, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to report to the company motor pool at the time prescribed; punishment included reduction in rank from PFC to private (PV2)/E-2. c. On 24 June 1967, orders directed the applicant to go home on 30 days of emergency leave due to his mother's illness. d. Effective 16 December 1967, his chain of command promoted him to PFC/E-3. e. On 2 February 1968, the applicant was reassigned within country to the 21st Supply and Service Company. On 25 February 1968, he accepted NJP for sleeping while on guard duty; the imposing officer reduced him to PV2/E-2. f. He completed his Vietnam tour on 21 March 1968 and orders reassigned him to Fort Sill, Oklahoma; he arrived on 24 April 1968. On 2 August 1968, he accepted NJP from his Fort Sill commander for willfully disobeying a lawful order from a first lieutenant to cut his sideburns shorter. g. On 30 September 1968, civilian law enforcement arrested him for possession of marijuana and confined him pending trial. On 14 November 1968, a civilian court convicted him of marijuana possession and sentenced him to 1 year in prison. h. On 13 March 1969, the applicant's Fort Sill commander prepared a memorandum that gave details as to the applicant's conduct rating; the commander stated he rated the applicant's conduct as unsatisfactory and noted the applicant was serving a 1-year prison term for possession of marijuana. The commander further indicated the applicant was undergoing separation per Section VI (Conviction by Civil Court), paragraph 33a (Conviction by Civil Court), Army Regulation (AR) 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)). i. The applicant's complete separation packet is not available for review. However, his record does contain his separation orders and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). (1) His separation orders indicate the separation authority had directed the issuance of an undesirable discharge certificate based on the findings and recommendations of a board of officers. (2) His DD Form 214 shows, on 19 March 1969, he was discharged under other than honorable conditions, per AR 635-206. His DD Form 214 further indicates the following: (a) He completed 1 year, 11 months, and 6 days of his 2-year AUS obligation, with 176 days of lost time (b) He was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Republic of Vietnam Campaign Medal with Device (1960) * one marksmanship qualification badge * one overseas service bar 4. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge. However, in view of the fact his service record contains his separation orders and his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. 5. The Army has never had a policy of automatically upgrading character of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. 6. During the applicant's era of service, commanders were required to initiate separation action against Soldiers who had been convicted by civil authority of offenses for which the UCMJ showed more than 1 years' confinement as a maximum punishment. According to the Manual for Courts-Martial, in effect at the time, the maximum punishment for possession of marijuana (Article 134 (General Article – Wrongful Possession, Use, Sale or Transfer of Marijuana)) included 5 years in confinement. 7. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the date of his induction, his record of service to include service in Vietnam, the nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found the applicant provided no evidence of post-service achievements or letters of recommendation in support of a clemency determination. The Board found no error in his separation, but determined that the reason for his confinement one month before ETS warranted clemency and that the character of service he received upon separation was too harsh; a discharge upgrade was required to correct an injustice. The Board concurs with the administrative corrections 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 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the corrections stated 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 the applicant’s DD Form 214 for the period of service ending 19 March 1969 to show in block 13a. (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. AR 600-8-22 states a bronze service star will be awarded for wear on the Vietnam Service Medal for participation in each campaign. Recognized campaigns for Vietnam include: * Vietnam Counteroffensive, Phase II (1 July 1966 to 31 May 1967) * Vietnam Counteroffensive, Phase III (1 June 1967 to 29 January 1968) * Tet Counteroffensive (30 January 1968 to 1 April 1968) 3. Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows: a. Department of the Army General Orders (DAGO) Number 1, dated 1969, awarded the Meritorious Unit Citation to the 592nd Transportation Company for the period 1 January to 31 December 1967. b. All units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 4. AR 670-1 (Uniforms and Insignia) governs the requirements for the overseas service bar. It states a bar is authorized for wear for each period of active Federal service as a member of the U.S. Army outside of the continental limits of the United States for the specific time frames and areas of operation cited in Army Regulation 670-1 or appropriate Department of the Army (DA) message. a. There are special provisions regarding authorization for the overseas service bar for service in a hostile fire zone and for combining service to calculate award of the bars. b. For Vietnam service, one overseas service bar was authorized for each period of 6 months active Federal service as a member of a U.S. Service in Vietnam from 1 July 1958 to 28 March 1973. Both the month of arrival and the month of departure from Vietnam counted as whole months for credit toward the overseas service bar. 5. AR 670-5 (Uniform Insignia - Male Personnel), in effect at the time, stated overseas service bars could be worn on the Army Green uniform by Soldiers who served in Vietnam. One overseas service bar was authorized for each period of 6 months of active Federal service as a member of the U.S. Army in Vietnam subsequent to 1 July 1958. Although not required by the regulation, many separation transfer points reflected the number of overseas service ribbons awarded on the Soldier's DD Form 214. 6. As a result, amend the applicant's DD Form 214, ending 19 March 1969, as follows: a. Delete the Vietnam Service Medal with one bronze service star and "O/S (overseas service) Bar (1) (Vietnam)." b. Add the following: (1) Item 24: * Vietnam Service Medal with three bronze service stars * Meritorious Unit Commendation * Two overseas service bars * Republic of Vietnam Gallantry Cross with Palm Unit Citation (2) Item 30: "Service in Vietnam from 7 April 1967 to 21 March 1968." 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. 2. AR 635-206, in effect at the time, prescribed procedures for misconduct separations. a. Section VI (Conviction by Civil Court) stated Soldiers who were initially convicted by a civil court were subject to discharge; the Soldier had to have been convicted of an offense for which the maximum punishment under UCMJ included either death or confinement for more than 1 year. b. Soldiers who were confined by civil authority and unable to appear in person before a board of officers were advised via registered mail of the following: the proposed discharge action; the type of discharge that could be issued; and the fact the elimination action was suspended to give him the opportunity to request counsel and, in the event of the Soldier's absence, to have counsel present the Soldier's case before the board; to submit statements in his own behalf; and/or to waive his rights. c. Board of officers were convened to determine whether the Soldier should be retained or discharged. The board's proceedings were to include a verbatim record of its findings and recommendations. The board's available recommendations were limited to either retention or separation; if the determination was separation, the board was to recommend the type of discharge to be issued. On receipt of the board's proceedings, findings, and recommendations, the general court-martial convening authority was required to act on the board's results; the action taken could not be more severe than that recommended by the board. An undesirable discharge under other than honorable conditions was normally furnished to Soldiers discharged under this provision. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 134 (General Article – Wrongful Possession, Use, Sale or Transfer of Marijuana), UCMJ, included 5 years confinement. 4. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. Paragraph 1-9e (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. ABCMR Record of Proceedings (cont) AR20190000359 8 1