ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20190002076 APPLICANT REQUESTS: In effect, an upgrade of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service is characterized as honorable in lieu of under conditions other than honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement of Contentions * DD Form 214 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. The applicant states, in effect, he was told his expiration term of service (ETS) would take place at Fort Ord, CA. Please investigate this. It took him 47 years to get his DD Form 214. He states he never had a lawyer nor did he see a judge. He was age 17 when he enlisted in the Army and he served in Vietnam. 3. He also provides a letter, in which he states he wants his discharge upgraded and his rank restored. Additionally, he states: * he was to ETS at Fort Ord, They gave him $160, travel pay * in Vietnam he was paid $411 in cash; he was promised money when he got Stateside; he believes someone cheated him out of his money * he was promised he would be stationed at Fort Jackson, S.C. * when he was picked for saying he was absent without leave (AWOL) * he did not see a lawyer or judge, someone had to forge his name * he never did what he was trained to do, he was thrown into an infantry division * Vietnam veterans were treated very badly * when he returned home he did not see a doctor or go to the medical clinic * he has flat feet, which give him lots of problems * he broke his ankle while in the military and nothing was done about it * he spent thousands of dollars on his teeth, and he lost them, because in Vietnam he had no water or tooth paste 4. The applicant enlisted in the Regular Army (RA) at age 17 with parental consent and he served honorably from 7 January 1969 to 30 January 1971, until he was separated for immediate reenlistment. He served in Germany from 19 June 1969 to 13 May 1970. a. On 14 February 1970, while in Germany, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 11 February 1970 for operating a M151 1/4 ton truck in a reckless manner on and for wrongfully appropriating a M151 1/4 ton truck, the property of the U.S. Army, valued at approximately $2,880 on 5 February 1970. His punishment consisted of a forfeiture of pay, extra duty and restriction, and reduction to pay grade E-3 (suspended 90 days). On 18 March 1970, the suspended portion of the punishment was vacated. b. While in Germany, he held military occupational specialty (MOS) 12A (Pioneer). 5. On 3 July 1970, he was assigned to Vietnam, in MOS 12B. At age 19, on 31 January 1971, while in Vietnam, he reenlisted in the RA for 4 years, for his present duty assignment, “919th Engineer Company, 11th ACR [Armored Cavalry Regiment],” in pay grade E-4. He left Vietnam on 10 May 1971 and he was attached to Fort Jackson, SC, on 2 July 1971, then he was to report to Fort Ord on 8 July 1971. 6. His DA Form 20 (Enlisted Qualification Record) shows his status as: * AWOL from 8 July to 26 August 1971 * AWOL from 22 November to 21 December 1971 7. On 26 April 1972, charges were preferred against the applicant for being AWOL from 22 November 1971 to 24 April 1972. 8. On 2 May 1972, a Report of Medical Examination, shows the applicant was determined to be qualified for separation. 9. On 2 May 1972, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He indicated he was submitting a statement in his own behalf. 10. In an, undated, statement he indicated, in effect: Sir, I am asking for this discharge for the benefit of the Army and the tax payers. An Army training school would not do him any good, because he would do the same thing over again until he was discharged from the Army. He understood there was, “CTF,” training at Fort Riley, KS. But, he did not want to go to this training, he wanted a discharge and that was all he was asking. 11. The applicant was on excess leave from 5 May 1972 until he was discharged. 12. On 30 May 1972, the applicant's commander recommended the applicant's request for discharge be approved and that he be issued an Undesirable Discharge Certificate. 13. On 5 June 1972, the court-martial authority approved the applicant's voluntary request for discharge with the issuance of an Undesirable Discharge Certificate. 14. On 26 June 1972, he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service with an undesirable discharge, in pay grade E-1. He completed 2 years, 10 months, and 8 days of net active service that was characterized as under conditions other than honorable. This service included 1 year, 9 months, and 4 days of foreign service. He also had 130 days of lost time. His awards are listed as: The National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal with 1 bronze service star, and 2 Overseas Service Bars. His record also contains a citation and certificate for the Army Commendation Medal for the period 1 July 1970 to 31 May 1971. 15. He had honorable service from 7 January 1969 to 30 January 1971 and the period of service from 31 January to 26 June 1972 was undesirable. 16. Chapter 10 of AR 635-200, in effect at the time, stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. 17. In regards to the applicant’s contentions that: a. His discharge should be upgraded and his rank restored. The available evidence shows he had extended periods of AWOL that amounted to 130 days, as a result, he voluntarily requested a discharge to avoid trial by court-martial and a possible felony conviction. Both his reason for discharge and his characterization of service are in conformance with the regulation in effect. He was also reduced to pay grade E-1, upon discharge in accordance with the regulation. When you are issued an undesirable discharge you do not maintain your rank. b. He believes he was cheated out of his money. His pay records are not available for review with his case. Additionally, Title 31 U. S. Code, section 3702, also known as the barring act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. c. He was promised that he would be assigned to Fort Jackson, upon his return to the United States. The applicant reenlisted while in Vietnam for his present unit of assignment on 31 January 1971, there is no evidence that he was promised a specific duty assignment upon return to the United States. d. He did not see a lawyer or judge and someone forged his name on discharge. The available evidence shows he consulted with a lawyer prior to his request for discharge and his rights were explained to him. But, he did not go before a judge because he opted to avoid a trial by court-martial. He was put on excess leave, on 5 May 1972, so that he would not have to sit in confinement waiting for completion of the discharge process. No one forged his signature, his DD Form 214 does not contain his signature. e. He never performed the duties that he was trained to perform, he was thrown into an infantry division. The evidence shows, initially, he was trained as a pioneer and he performed those duties in Germany. In 1970, his MOS was changed and he performed the duties of a combat engineer. He performed those duties when he was assigned to the 11th ACR, in Vietnam. When he returned home from Vietnam to Fort Ord, he was assigned in his combat engineer MOS, but he performed the duties of a radio-telephone operator. f. He broke his ankle in Germany and nothing was done about it and when he returned home from Vietnam, he did not see a doctor or go to the medical clinic. He has flat feet, which give him lots of problems. The evidence shows when he returned home he went AWOL and his separation medical examination shows all of his extremities were normal to include his feet. g. He spent thousands of dollars on his teeth, and he lost them, because in Vietnam he had no water or tooth paste. However, his dental records are not a part of the available evidence. h. He was told his expiration term of service (ETS) would take place at Fort Ord, CA, he wants this investigated. He reenlisted in the RA on 31 January 1971 for 4 years. When he went to Fort Ord on 8 July 1971, he had had 3 years and 5 months left on his enlistment obligation. Additionally, AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR, which decides cases based on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing, or request additional evidence or opinions. 18. In reaching its determination, the Board can consider the applicant’s age, his petition, and his service record in accordance with the published equity, injustice, or clemency guidance. 19. On 13 June 1983, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD policy for consideration of discharge upgrade requests. The Board discussed his statement, his service and excellent ratings in Vietnam, his previous honorable service, the frequency and nature of his misconduct and whether to apply clemency. The Board determined that based on his entire record and the nature of his misconduct, that by the preponderance of evidence clemency should be applied and his record corrected. 2. After reviewing the application and all supporting documents, the Boar determined that partial 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: 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 of service ending 26 June 1972 to show in Character of Service “General, under honorable conditions”. 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 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. ADMINISTRATIVE NOTE(S): 1. A review of the applicant’s record shows his DD Form 214 for the period ending 26 June 1972 is missing an important entry that may affect his eligibility for post-service benefits. 2. As a result, amend the DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 690107 - 710130.” 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-2 states the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in 10 USC 1034 and DODD 7050.6) or request additional evidence or opinions. 4. 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. 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 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. 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. ABCMR Record of Proceedings (cont) AR20190002076 4 1