ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 May 2019

	DOCKET NUMBER:  AR20190002196


APPLICANT REQUESTS: 

* Upgrade of his under other than honorable conditions discharge to general under honorable conditions
* Correct his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show foreign service in Germany and Vietnam

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for Army Discharge Review Board)
* DD Form 214 

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 he is applying for benefits from the Department of Veterans Affairs.  While serving in Vietnam, they told him there was a death in his family, but did not say who; he later learned his son had died.  His leadership denied his request for emergency leave, so he went absent without leave (AWOL) to be with his family.  Once he returned to the Army, they discharged him under other than honorable conditions.  He contends this character of service was neither just nor accurate.  In addition, he notes his DD Form 214 does not reflect his foreign service in Germany and Vietnam.

3.  The applicant's service records show:

	a.  After obtaining his mother's written consent, the applicant enlisted into the Regular Army on 26 February 1969 for 3 years; he was 17 years old.  

	b.  On 27 May 1969, while participating in advanced individual training (AIT) for military occupational specialty 11B (Light Weapons Infantryman), he departed his unit in an AWOL status and remained absent until 8 June 1969.  

	c.  On 16 June 1969, consistent with his pleas, a summary court-martial convicted him of AWOL from 27 May until 8 June 1969 (12 days).  The court sentenced him to 60 days restriction to his unit area and forfeiture of $65 per month for 1 month.  The summary court-martial convening authority approved the sentence, but suspended the restriction until 15 August 1969.

	d.  On completion of AIT, orders assigned him to Fort Campbell, KY; he arrived on 5 September 1969.  While at Fort Campbell, he was honorably discharged on 6 February 1970 so he could immediately reenlist.  His DD Form 214 showed he completed 10 months and 27 days of net active creditable service, with lost time from 27 May to 7 June 1969.  He was awarded or authorized the National Defense Service Medal.  On 7 February 1970, he reenlisted for 3 years.  

	e.  In February 1970, permanent change of station orders reassigned the applicant's unit from Fort Campbell to Germany; he arrived at the unit's new location on 20 June 1970.

	f.  On 31 July 1970, while stationed in Germany, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for leaving his post as a supply room sentinel, and for failing to go to his appointed place of duty at the time prescribed.  

	g.  On 3 September 1970, his unit commander in Germany issued him a letter of reprimand for his unwillingness to perform his duties and repeatedly displaying an unconcerned attitude; based on the applicant's behavior, the commander relieved him from duty.

	h.  On 14 October 1970, the applicant accepted NJP for absenting himself from his place of duty between 1800 and 2100 hours, and for being derelict in his duties by failing to prepare for his commander's inspection.  

	i.  Permanent change of station orders, dated 20 October 1970, reassigned him to the U.S. Army Overseas Replacement Station at Fort Lewis, WA, for further assignment to Vietnam; the orders showed he was to depart Germany on 25 October 1970, and, after taking leave, arrive at Fort Lewis on 30 November 1970.  On 30 November 1970, the U.S. Army Overseas Replacement Station reported the applicant AWOL; he returned to military control on 14 December 1970.  

	j.  On or about 15 December 1970, the applicant accepted NJP for AWOL from 30 November until 14 December 1970.  Orders then reassigned him to the Vietnam; he arrived in Vietnam on 1 January 1971 and was further assigned to the 25th Infantry Division.  

	k.  Special Orders awarded him the Combat Infantryman Badge (1st Award), effective 3 January 1971.

	l.  In-country orders reassigned him from the 25th Infantry Division to the 196th Infantry Brigade, 23rd Infantry Division (Americal); he arrived on or about 10 April 1971.  

	m.  Effective 21 June 1971, the applicant's leadership promoted him to specialist four (SP4)/E-4.  

	n.  On 12 August 1971, the applicant's unit in Vietnam reported him AWOL; 
on 21 January 1972, he returned to military control at Fort MacArthur, CA.  Orders reassigned him to the U.S. Army Personnel Control Facility at Fort Ord, CA.  

	o.  The applicant's separation packet is not available for review, but his record contains orders and a DD Form 214, which confirm his discharge, effective 20 March 1972.  The separation authority was chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  His DD Form 214 also shows he completed 1 year, 8 months, and 1 day of his second enlistment contract, with 163 days of lost time (12 August 1971 to 21 January 1972).  Entries for items 22c (Foreign and/or Sea Service) and 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) are blank.  

4.  Due to the unavailability of the applicant's separation packet, we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his separation orders and DD Form 214, the Board presumes the applicant's leadership completed his separation properly.  

5.  Discharges under chapter 10, AR 635-200 were voluntary and offered in-lieu of trial by court-martial.  The UCMJ offense of AWOL for more than 30 days included a dishonorable discharge as a punishment.  When charged with a UCMJ violation that included a punitive discharge, Soldiers could voluntarily request separation under chapter 10, AR 635-200.  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:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.  Based upon the applicant’s service in Germany and Vietnam, the Board found an error on the applicant’s DD Form 214 relating to foreign service credit that needed correcting.

However, the Board concluded that based upon the short term of service completed prior to a pattern of misconduct beginning, the characterization of service received at the time of discharge was appropriate.

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, dated 20 March 1972, by:
* adding to block 22c:  “00 11 18”
* adding to block 30:  “Service in Vietnam from 710101-710812”

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.
3.  Prior to closing the case, the Board noted the administrative notes below by the analyst of record and recommended those changes also be made to more accurately depict the military service of the applicant.
	 
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, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized.  In addition, the DD Form 214 was to reflect all periods of service performed outside the continental limits of the United States.  The remarks section was required to show the dates of service in Vietnam as follows:  "VIETNAM – (dates from and to), INDOCHINA – YES, KOREA – NO."

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 VII (1 July 1970 to 30 June 1971)
* Consolidation I (1 July 1971 to 30 November 1971)

3.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows all units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on DAGO Number 8, dated 1974. 

4.  As a result, amend his DD Form 214, ending 20 March 1972 as follows:

   Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – add the following awards:

* National Defense Service Medal
* Vietnam Service Medal with two bronze service stars
* Combat Infantryman Badge (1st Award)
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation



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 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations.

	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.  A Soldier's service was to be characterized as honorable based on conduct ratings of at least "Good"; efficiency ratings of at least "Fair"; no general court-martial, and no more than one special court-martial conviction.

	b.  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.

	c.  Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment.  The Soldier could submit such a request at any time after court-martial charges were preferred.  Once approved, an undesirable discharge was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted.

3.  The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed Article 86 (AWOL for more than 30 days), UCMJ, included a dishonorable discharge.

4.  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 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  

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 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.

6.  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.

7.  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.


ABCMR Record of Proceedings (cont)	 AR20190002196


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